THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


C.  L  BENSEL 

LAW  ..PR 

21 0  DOUGLAS  3LDG. 

MU  44'  uEg 


A  TREATISE 

ON 

THE   LAW   OF   WAIVER 


BY 

RENZO  D.  BOWERS 

OF  THE  BOSWELL  NEW  MEXICO  BAB 


PORTLAND,  OREGON: 

GEO.  A.  BATESON  &  CO.,  INC., 

1914 


Copyright  1914 

By 
Renzo  D.  Bowers. 


T 


TO 
MY  WIFE 

FOE  LOVING  ASSISTANCE 

AND  TO  MY  MOTHEE  FOE  KIND  EN- 

OOUEAOEMENT,  AND  THUS  TO  THE  TWO 

MOST    DEAE   IN   ALL   THE   WOELD,    AS    A 

MEMENTO  OF  APPEECIATION,  THIS 

WOEK  IS  AFFECTIONATELY 

INSCRIBED 

B.  D.  B. 


G6v65G 


CHAPTER  HEADINGS 


LIST  OF  CHAPTER  HEADINGS. 

Chapter     1.  Preliminary. 

Chapter     2.  Contracts. 

Chapter     3.  Bills  and  Notes. 

Chapter     4.  Mortgages. 

Chapter     5.  Liens. 

Chapter     6.  Statute  of  Frauds. 

Chapter     7.  Exemptions. 

Chapter     8.  Privileged  Communications. 

Chapter     9.  Redemption. 

Chapter  10.  Statute  of  Limitations. 

Chapter  11.  Corporations. 

Chapter  12.  Insurance. 

Chapter  13.  Torts. 

Chapter  14.  Pleading. 

Chapter  15.  Criminal  Practice. 

Chapter  16.  Civil  Practice. 


TABLE  OF  CONTENTS 


CHAPTER   1. 

PRELIMINARY: 

iSec.   1.     DEFINITION. 

Sec.  &.     WHO  MAY  WAIVE  RIGHTS: 

A.  Agents. 

B.  Attorneys. 

C.  Infants. 


CONTRACTS: 

Sec.    12.     WAIVER    OiF    THE    MANNER    OF    PERFORM- 
ANCE: 

A.  By  Acceptance  After  Breach. 

B.  By  (Proceeding  Under  the  Contract  After  a 

Breach. 

C.  By  Preventing  the  Other  Party  From  Per- 

forming. 

D.  Condition  for  Payment  for  Goods  on  De- 

livery. 

Sec.   36.     WAIVER   OF   TIME   FIXEID    FOR   IPERiFOIRM- 
ANOE1: 

A.  Performance  Prevented  By  the  Promissee. 

B.  Time  Held  Not  Waived. 

Sec.   46.     WAIVER  OiF  TENDER,  OF  PERFORMANCE: 

A.  General  Rules. 

B.  Acts  Held  Not  A  Waiver. 
Sec.  62.     WAIVER  OF  FORFEITURES : 

A.  General  Rules. 

B.  In  Deeds  and  Land  Contracts. 

C.  In  Leases. 

Sec.    6i5.     WAIVER  OF  THE   RIGHT  TO  .RESCIND. 

CHAPTER  3. 

BILLS  AND  NOTES: 

Sec.   72.     IN  GENERAL. 

Sec.   74.     WAIVER  CONTAINED  IN  THE  INSTRUMENT: 

A.    On  Face  of  Instrument. 

DB.    Waiver  in  Indorsement. 


8  THE  LAW  OF  WAIVES 

Bee.   76.     ORAL  WAIVER. 

A.  Concurrently  With  Indorsement. 

B.  Subsequently  To  Indorsement,  But  Prior 

To  Maturity. 

C.  At  Maturity. 

D.  After  Maturity. 

Bee.   81.     WAIVERS  AFTER  DEFAULT: 

A.  By  Promise  to  Pay — 

(1)  Sufficiency  of  promise. 

(2)  Conditional  promise. 

(3)  Insufficient  promises. 

B.  Knowledge  Essential  To  Promise — 

(1)  Whether  promise  presumes  knowl- 

edge. 

(2)  Knowledge  of  legal  effect  of  hold- 

er's default. 

C.  Payment  or  Part  Payment  As  Waiver. 

D.  Receipt  By  Indorser  Of  Money,  Property 

Or  Other  Security  As  Waiver. 

E.  Waiver  By  Conduct. 

Sec.    105.    CONSIDERATION  FOR  WAIVER: 

Sec.    109.     WHETHER    WAIVER    IS    WITHIN    STATUTE 

OF  FRAUDS. 
Sec.    110.     EXTENT  OF  WAIVER: 

CHAPTER  4. 

MORTGAGES: 

Sec.    112.     CHATTEL  MORTGAGES: 

A.  Waiver  of  The  Lien  By  Attachment. 

B.  By  Execution. 

C.  By  Other  Acts  of  The  Mortgagee. 
Bee.   118.     RIEAL  ESTATE  MORTG AGES : 

A.  Waiver  Of  The  Lien — 

(1)  By  suit  or  judgment  on  note. 

(2)  Levy   of    execution    on    mortgaged 

premises     to     satisfy    mortgage 
debt. 

(3)  Taking    other    security;    attaching 

mortgaged  property;  etc. 

(4)  Waiver  of  priority. 

B.  Waiver  In  Foreclosures — 

(1)     Breach  of  mortgage  conditions— 
(a)     Non-payment  of  interest. 


TABLE  OF  CONTENTS  9 

(b)  Non-payment  of  taxes,  in- 
surance    or     installments     of 
principal. 

(2)     Waiver  of  entry  to  foreclose. 

(8)     Waiver  of  foreclosure  sale. 

(4)     Waiver  of  right  to  set  aside  sale — • 

(a)     By  laches  or  delay. 

(fc)     Effect  of  redemption. 

(c)  Other  conduct  constituting 

waiver. 

CHAPTER  5. 

LIENS: 

Sec.    148.     PROMISSORY  LIENS: 

A.  Carriers. 

B.  Inn-Keepers. 

C.  Liverymen  and  Agisters. 
Sec.    155.     ATTORNEY'S  LIENS. 

Sec.    157.     MECHANIC'S  LIENS. 

A.  In  General. 

B.  By  Taking  Debtor's  Note. 

C.  By  Drawing  Draft. 

D.  By  Taking  Mortgage. 

E.  By  Taking  Collateral  Security. 

F.  By  Personal  Judgment,  Attachment,  Or  Ex- 

ecution. 

G.  Miscellaneous  Waivers. 
Sec.    172.    VENDOR'S  LIENS. 

CHAPTER  6. 

STATUTE  OF  FRAUDS: 

Sec.    1715.     IN  GENERAL. 

Sec.    177.     HOW  WAIV7DR  OF  THE  STATUTE  MAY  OC- 

CUiR. 
Sec.   181.     EFFEICT  OF  WAIVING  THE  STATUTE. 

CHAPTER  7. 

EXEMPTIONS: 

Sec.    182.     WAflVETl  IN  GENERAL. 
Sec.    183.     BY  CONCUiRREOSTT  AGREEMENT. 
Sec.    18'5.     BY  SUBSEQUENT  CONDUCT. 
Sec.   187.    'HOMESTEAD 


10  THE  LAW  OF  WAIVEB 

CHAPTER  8. 

PRIVSLEXJiED  OOM'MUNIOATIONS : 
Sec.   190.     IN  GHE2N1EJRA1L. 
Sec.   191.     ATTORNEY  AND  OLTEiNT. 
See.   186.     PHYSICIAN  AND  PATIENT. 

A.  Who  May  Waive  Privilege. 

B.  What  Amounts  To  Waiver. 
Sec.   198.     HUSBAND  AND  WIFR. 

CHAPTER  9. 

REDEMPTION: 

Bee.   199.     UNDER  MORTGAGES: 

A.  By  Concurrent  Agreement — 

(1)  In  mortgage. 

(2)  By  separate  instrument. 

B.  By  Subsequent  Agreement. 

C.  By  Laches. 

D.  By  Other  Conduct. 

CHAPTER  10. 

STATUTE  OF  LIMITATIONS: 
Sec.   21i5.    <PCREiLIMINA/RY. 
Sec.   219.     ACKNOWLEDGMENT  OP  DEBT. 
Sec.   2*22.     NEW  PROMISE'  TO  BAY. 

A.    Part  Payment. 
Bee.   22-5.     FAILURE    TO    PUEAD    THE  STATUTE. 

A.  In  Civil  Actions. 

B.  In  Criminal  Cases. 

CHAPTER  11. 

CORPORATIONS: 

6ec.   227.     CONDITIONS      AND      IRREGULARITIES      IN 
(SUBSCRIPTIONS: 

A.  Conditional  Subscriptions — 

(1)  In  general. 

(2)  That  all  stock  be  subscribed. 

(3)  Miscellaneous  conditions. 

B.  Irregularities  In  Subscriptions — 

(1)  In  general. 

(2)  Fraud  and  misrepresentation. 
Bee.   239.     BY-LAWS  AND  OOlRPOfRATE  MEETINGS:' 


TABLE  or  CONTENTS  11 

A.  [By-laws. 

B.  Corporate  Meetings. 

Sec.    24.5.     ASSESSMENTS      AND    '  FORFEITURES      OF 
SHARES. 

A.  Waiver  As  Applied  To  Assessments. 

B.  Forfeiture  of  iShares. 

Sec.    249.     TRANSFER     OF      STOCK     AND     LJlEiN      ON 
SHARES: 

A.     Transfer  of  Stock. 

<B.     Waiver  Of  Lien  On  Shares. 
Bee.    2'58.    RIGHT  OF  STATE  TO  CANOEL  CHARTER. 

CHAPTER   12. 

INSURANCE: 

Sec.   262.     RELATION    BETWEEN    INSURER    AND    ITS 
AGENTS: 

A.  In  General. 

B.  Who  Are  Agents  Who  May  Waive  Rights. 

C.  Clerks. 

Sec,   274.     WHAT  MAY  BE  WAIVED;  WHAT  AMOUNTS 
TO  A  WAIVER: 

A.  Acts  Prohibited  By  Charter. 

B.  Conditions — 

(1)  Breach   of  conditions   prior  to   de- 

livery of  policy — 

(a)  Condition  as  to  title. 

(b)  Condition     as     to     encum- 
'brances. 

;(c)     Condition  as  to  vacancy. 

(d)  Condition     as     to     use     of 
premises. 

(e)  Condition  as  to  prior  insur- 
ance. 

(f)  Condition    as    to    Iron-safe 
clause. 

(2)  Breach  of  condition  subsequent  to 

delivery  of  policy — 

(a)  Change  in  title. 

(b)  Vacancy. 

(c)  Encumlbrances. 

(d)  Mis-use  of  premises. 

(e)  Additional  Insurance. 

C.  Payment  Of  Premium — 

,(1)     Before  delivery  of  policy — 


12  THE  LAW  OP  WAIVES 

(a)     In  general. 

(2)  After  delivery  of  policy — 

(a)  Theory    that    payment    at 
maturity  may  be  waived. 

(b)  By  custom. 

(3)  Waiver  of  cash  payment. 
Bee.  3115.    FORFEITURES: 

A.  In  General. 

B.  Indorsement  of  Waiver  on  Policy. 
Sec.   319.     NOTICE  OF  DOSS: 

A.  Silence  Of  Insurer  Or  Failure  To  Object 

Not  a  Waiver. 

B.  Contrary   View. 

C.  Distinction   Between  Notice  Out  of  Time 

And  Notice  Defective  In  Form. 
Sec.   324.    PROOFS  OF  LOSS: 

A.  Failure  To  File  Any  Proofs — 

(1)  In  general. 

(2)  By  denial  of  liability. 

(3)  Refusal  to  pay  on  other  grounds. 

(4)  By  other  acts  or  conduct. 

B.  Defective  Proofs  Within  Time  Required— 

(1)  No  Objection  By  Insurer. 

(2)  Objection  on  other  grounds. 

C.  Not  Filed  In  Time. 

D.  Who  May  Waive  Proofs. 

E.  Whether  Proofs  May  Be  Waived  Orally— 

(1)  In  the  negative. 

(2)  In  the  affirmative. 
Sec.   339.     ARBITRATION. 

Sec.   341.     LIMITATION  OF  TIM'S  TO  SUE: 
A.    What  Constitutes  A  Waiver. 
03.    Acts  Not  A  Waiver. 


CHAPTER  13. 


TOlRTS: 


fiec.   343.     IN  GENERAL. 

(Bee.   345.     FRAUD   AND    FRAUDULENT   RffiPRiEBElNTA- 

TJJONS. 

Sec.   348.     OONVEfR/SlIOfN. 
Sec.   361.     EXPECT  OF  WAIVER. 


TABLE  OF  CONTEXTS  13 

CHAITER   14. 


PLEADING: 


Sec.   3:52.     WAIVER  BY  APPEARANCB: 

A.  Defects  In  Process — 

(1)  Special  appearance. 

(2)  Exemption  from  service. 

B.  Jurisdiction — 

(1)     Over  subject-matter. 
Bee.   370.    DEFECTS  IN  COMPLAINT: 

A.  In  General. 

B.  By  Answering. 

C.  Mis-joinder — 

(1)  Of  parties. 

(2)  Of  causes  of  action. 

D.  incapacity  Of  Plaintiff. 

39.     Waiver  Of  Error  In  Over-ruling  Demurrer. 
F.    Objections  To  Venue. 
Sec.   382.     IN  ATTACHMENTS   AND   GARNISHMENTS: 

A.  Defects  In  Affidavit. 

B.  Defects  In  Writ. 

C.  Waiver   Of  Attachment  Lien. 

D.  Waiver  By  Garnishee. 
Sec.   386.     IN    CRIMINAL   PROOEEOINGS : 

A.  Jurisdiction. 

B.  No  Offense  Charged  In  Indictment. 

C.  Former  Jeopardy. 

CHAPTER  15. 

CRIMINAL  PRACTICE: 

Sec.   393.     IN  GENERAL. 

Sec.   394.     BIGHT  TO  JURY  TRIAL. 

•Sec.   396.     JURY  OF  FEWER  THAN  TWE'LVH. 

A.  In  Felonies. 

B.  In  Misdemeanors. 

6«c.   399.     WAIVER  OF  PRIVILEGE  PROM  SELF^Cfclltt- 

NATION. 

Sec.    403.     RIGHT   OF  ACCUSED  TO   BE   PRESENT   AT 
TRIAL. 

A.    Crimes  Less  Than  Capital. 
IB.    Capital  Offenses. 

C.  Who   May  Waive  The   Right. 


14  THE  LAW  OF  WAIVEB 

CHAPTER   16. 

CIVIL.  PRACTICE: 
Subdivision  1: 

Sec.   407.     OBJECTION   TO  SPECIAL   JUDGE. 
Sec.   408.     OBJECTIONS  TO  JUROJEtS: 

A.  Panel. 

B.  Poll. 

fiec.   412.     RIGHT  TO  JURY  TRIAL: 

A.    Number  Of  Jurors. 
Sec.  416.    WITNESSES: 

A.  Oath. 

B.  Depositions. 

C.  Competency. 

D.  Self-crimination — 

(1)  Time  to  claim  privilege. 

(2)  Privilege  must  be   claimed. 

(3)  Extent  of  waiver. 
Subdivision  2: 

TRIAL  PRACTICE: 

Sec.    426.     IN  GENERAL. 

Sec.   428.     OBJECTIONS  TO  EVIDENCE: 

A.  Admission — 

(1)  Time  to  object. 

(2)  Specifying  evidence  and  ground  of 

objection — 
(a)     In  general, 
(•b)     Incompetency. 
(c)     Incompetent,  irrelevant  and 
immaterial. 

B.  Variance. 

Sec.   441.     EXCEPTIONS  TO  RULINGS  OF  THE  COURT: 

A.  In  General. 

B.  To  Exclusion  Of  Evidence. 

C.  To  Admission  Of  Evidence. 
fiec.   447.     WAIVE/R  AS  TO  NON-SUITS, 
gee.   452.     DEMURRER  TO  THE  EVIDEiNCE. 
flee.   455.     DIRECTING  VERDICT. 

flee.   456.     INSTRUCTIONS: 

A.  In  General. 

B.  Instructions  Given — 

(1)  Waiver  of  written  instructions. 

(2)  Exceptions. 

C.  Instructions  Refused — 

(1)     Exceptions  to  refusal  to  instruct. 


TABLE  OF  CONTENTS  15 

D.    Time  For  Exceptions. 
Sec.   469.     VERDICT. 
See.   470.     FINDINGS  OF  FACT. 
Sec.   471.     NEW  TRIAL. 
Sec.   473.     WAIViDR    IN    APPELLATE    PRACTICE: 

A.  Waiver  Of  Right  To  Appeal — 

(1)  From  consent  judgments. 

(2)  By  paying  judgment. 

(3)  By  accepting  benefits  of  judgment. 

B.  Notice  Of  Appeal. 


PREFACE  17 


PREFACE. 

The  only  excuse  requisite  to  be  advanced  on  the 
part  of  a  writer  of  a  book  on  any  subject  of  the  law 
is  a  belief  that  the  work  will  assist  the  members 
of  a  busy  profession  in  sifting  the  golden  grains 
from  the  masses  of  foreign  material  in  which  they 
are  embedded,  and  render  lighter  and  speedier  the 
task  of  fitting  to  the  facts  of  any  particular  case  the 
principles  of  law  by  which  they  are  to  be  governed. 
Without  offering  it  as  an  excuse  therefor,  I  submit 
this  reason  as  a  basis  for  presenting  this  volume  to 
the  profession. 

The  law  of  Waiver  has  been  consigned  to  a  hap- 
hazard growth,  the  principles  of  which  have  in  some 
measure  or  to  some  extent  insinuated  themselves 
into  every  subject  of  the  law  but  have  received  no 
recognition  as  a  separate  and  distinct  subject  in 
themselves.  Yet  no  subject  deserves  more  and  re- 
ceives less  consideration.  Its  principles  are  far- 
reaching.  The  instances  of  its  application  are  multi- 
tudinous. And  the  fact  that  no  work  is  extant  deal- 
ing with  the  subject  and  exemplifying  its  ramifica- 
tions of  the  law  is  remarkable  when  we  note  the 
tomes  and  tomes  at  large  dealing  with  nearly  every 
other  individual  subject  of  the  law. 

The  plan  I  have  sought  to  follow  has  been -to 
present  a  distinct  arrangement  of  subjects,  giving 
to  each  a  chapter,  with  the  object  of  attaining  a 
method  of  ready  reference.  For  each  principle  an- 
nounced, I  have  sought  to  submit  authorities  bear- 
ing directly  upon  the  facts  as  given,  with  authorities 
touching  in  some  manner  the  general  principle  in- 


19  THE  LAW  OF  WAIVES 

volved.  Needless  to  say,  I  have  despaired  of  citing 
every  decided  case  on  the  law  of  Waiver,  although 
some  five  thousand  are  noted  in  this  volume. 

Where  inharmony  exists  among  the  courts  as 
to  any  question  discussed,  I  have  endeavored  to 
present  the  several  holdings  showing  the  conflicting 
views,  together  with  my  own  views  as  to  the  better 
rules  and  the  reasons  inducing  same.  In  some  in- 
stances I  have  ventured  to  disagree  with  principles 
that  are  firmly  established  by  judicial  decision,  rec- 
ognizing the  fact,  however,  that  such  opinion  carries 
only  the  effect  of  inducing  the  practitioner  to  pause 
and  deliberate  as  to  whether  such  established  prin- 
ciples are,  in  fact,  well  founded. 

I  have  gone  to  considerable  labor  in  referring 
the  citations  to  the  various  publications  in  which  the 
cases  are  reported  that  time  and  work  to  the  practi- 
tioner may  be  economized.  That  errors — perhaps 
many  of  them — have  crept  in,  it  would  be  vain  to 
deny,  but  notwithstanding  imperfections,  it  is 
hoped  that  some  assistance  may  be  received  from 
these  pages;  and  upon  such  considerations,  the 
work  is  consigned  to  the  mercies  of  an  ever-chari- 
table profession. 

Eoswell,  New  Mexico,  E.  D.  B. 

January  15,  1914. 


PRELIMINARY  19 


CHAPTER   1. 

PBJBILIMINAiRY. 

Section 

1.  DEFINITION 1 

2.  WHO  MAY  WAI  VIE  iRIOHTS — 

A.  Aigents 6 

B.  Attorneys 6 

C.  Infants 7 

1.  DEFINITION :  Sec.  1.  Waiver  is  the  vol- 
untary abandonment  or  surrender,  by  a  capable  per- 
son, of  a  right  known  by  him  to  exist,  with  the  in- 
tent that  such  right  'Shall  be  surrendered  and  such 
person  forever  deprived  of  its  benefit.  The  right 
abandoned  or  surrendered  may  be  one  arising  from 
contract,  or  it  may  be  conferred  'by  operation  of  law; 
and,  whether  the  one  or  the  other,  if  the  person 
possessing  such  right  so  express  himself  by  agree- 
ment or  so  conduct  himself  in  relation  to  the  right 
as  to  manifest  an  intention  to  forego  its  benefits,  he 
will  he  held  to  have  waived  the  right  and  cannot 
later  insist  upon  it.  Or,  as  it  has  been  said,  Waiver 
is  a  voluntary  relinquishment  or  renunciation  of 
some  right,  a  foregoing  or  giving  up  of  some  benefit 
or  advantage,  which,  but  for  such  waiver,  a  party 
would  have  enjoyed.  It  may  be  proved  by  express 
declarations;  or  by  acts  and  declarations  manifest- 
ing an  intent  and  purpose  not  to  claim  the  supposed 
advantage;  or  by  a  course  of  acts  and  conduct,  or 
by  so  neglecting  and  failing  to  act,  as  to  induce  the 
belief  that  it  was  his  intention  and  purpose  to 
waive.1 

1.     Jtorow  v.  KHi*.  16  Gray  <.*'*.   (.Mau.). 


20  THE  LAW  OF  WAIVER 

Sec.  2.  It  may  thus  be  seen  that  there  are  four 
components  of  a  complete  and  valid  waiver,  namely: 
A  Person,  sui  juris;  an  Existing  Eight;  Knowledge 
on  the  part  of  the  Person  of  the  Existing  Eight ;  arid 
an  Intention  of  the  Person  having  such  Knowledge 
to  surrender  the  Eight.  A  waiver  need  not  be  the 
express  avowal  of  an  intention  to  surrender  a  right ; 
the  essence  of  the  act  being  voluntary  choice,  it  may 
be  shown  by  conduct  fairly  and  justly  leading  an- 
other to  believe  that  a  right  has  been  relinquished,  or 
by  the  doing  or  forbearing  to  do  something  incon- 
sistent with  the  existence  of  a  right  or  an  intention 
to  rely  upon  it.  The  intention,  therefore,  though 
being  a  necessary  ingredient,  may  be  inferred  from 
conduct  or  from  the  negligence  of  the  party  to  whom 
it  is  imputed.  Still,  a  secret  purpose  is  not  enough 
to  create  a  waiver,  nor  is  the  mere  silence  of  one  who 
is  under  no  duty  to  speak;  there  must  in  every  in- 
stance 'be  either  language  duly  expressing  the  intent, 
or  conduct  clearly  and  reasonably  exemplifying  it. 

Sec.  3.  While  it  is  the  general  rule  that  in 
order  for  the  acts  or  words  of  a  person  to  be  bind- 
ing upon  him  as  a  waiver  he  must  have  acted  or 
spoken  with  full  knowledge  of  the  existence  of 
facts  and  circumstances  attending  the  creation  and 
continuance  of  the  right  he  is  alleged  to  have 
waived,  still  any  action,  though  taken  in  real  ignor- 
ance of  a  right,  will  be  held  a  waiver  where  knowl- 
edge is  presumed  or  imputed  to  the  party  from  the 
circumstances  of  the  case,  or  by  virtue  of  law,  or 
where  it  is  his  duty  to  inform  himself  and  he  has 
failed  to  do  so. 

Sec.  4.  The  doctrine  of  Waiver  has  in  every 
case  one  of  three  principles  for  its  foundation — the 


PRELIMINARY  21 

concurrence  of  the  wills  of  the  parties;  a  contrac- 
tual relation  created  by  law ;  or  estoppel  induced  by 
conduct.  In  either  of  these  methods  of  creating  a 
waiver,  no  consideration  is  essential  to  its  complete- 
ness or  validity,  unless,  indeed,  it  be  said  that  the 
causing  another  to  alter  his  position  or  to  do  some- 
thing by  reason  of  such  waiver  that  he  would  not 
otherwise  have  done  is  a  consideration  therefor. 
But  in  some  cases  an  executory  promise  to  waive  a 
stipulation  for  a  party's  benefit  is  a  mere  license 
which,  unless  some  consideration  be  given  therefor, 
may  be  withdrawn  at  any  time  before  it  is  acted 
upon. 

2.     WHO  MAY  WAIVE  RIGHTS. 

A.  AGENTS:— Sec.   5.     The   general   princi- 
ples governing  the  law  of  agency  are  applicable  to 
matters  involving  the  law  of  waiver,  and  it  is  the 
rule  here  that  a  waiver  that  may  be  made  by  a  per- 
son may  be  made  by  his:  agent,  except  in  certain 
classes  of  matters  involving  personal  privileges  or 
rights  which  can  be  waived  only  by  the  person  enti- 
tled to  assert  them,  and  always  on  the  condition  that 
the  agent  attempting  to  waive  a  right  belonging  to 
his  principal  shall  have  been  duly  authorized  there- 
unto.   The  instances  in  which  the  question  of  waiver 
by  an  agent  most  frequently  arises  will  be  found  in 
a  consideration  of  insurance  contracts  which  will  be 
hereinafter  treated  at  length  under  the  title  In- 
surance. 

B.  ATTORNEYS:— Sec.    6.      The    power    of 
attorneys  to  waive  rights  of  their  clients  depends 
altogether  upon  the  scope  and  condition  of  their 
employment.    An  attorney  once  employed  in  a  case 
has  full  authority  to  deal  with  matters  of  practice 


22  THE  DAW  OF  WAIVER 

and  procedure  in  the  action,  and  may  waive  any 
right  of  his  client  therein  and  such  waiver  will  be 
as  effectual  as  if  made  by  the  client  in  person.' 
But  the  general  rules  of  agency  and  the  special  rules 
governing  attorneys  will  not  permit  the  latter  to 
dispense  with  matters  or  forego  'benefits  to  their 
clients  which  do  not  legitimately  fall  within  the  cir- 
cumference of  their  employment.  Thus,  to  illus- 
trate, a  party  anticipating  that  suit  may  be  brought 
against  him,  consults  an  attorney  and  employs  him 
to  defend  the  suit  when  brought.  This  employment, 
being  simply  as  a  representative  in  court  after  the 
parties  have  been  lawfully  and  regularly  brought 
there,  would  not  confer  upon  the  attorney  authority 
to  waive  issuance  and  service  of  process  upon  his 
client  and  to  enter  an  appearance  in  the  case  as  if 
the  process  had  been  properly  issued  and  served. 
To  have  power  to  make  such  a  waiver,  the  attorney 
must  have  special  employment  for  that  purpose. 
And  what  is  true  of  an  employment  such  as  men- 
tioned is  true  of  every  other  matter  in  which  an  at- 
torney may  act  or  be  retained. 

0.  INFANTS :— Sec.  7.  The  ability  of  an  in- 
fant to  waive  rights  belonging  to  him  depends  upon 
the  general  principles  governing  his  power  to  con- 
tract or  to  exercise  other  privileges  given  'by  law  to 
persons  of  lawful  age.  And  the  law  being  that  all 
contracts  of  an  infant,  except  certain  reserved 
classes,  are,  if  not  void,  at  least  voidable,  it  follows 
that  as  far  as  the  law  of  waiver  is  concerned  it  has 
to  do  with  only  his  voidable  contracts  and  such 


3.     No.  Cent.  Ry.  Co.  v.  Rider,  45  Md.  24. 


PRELIMINARY  23 

civil  rights  as  arise  out  of  these,  together  with  his 
rights  in  any  criminal  proceeding  against  him  which 
he  possess  similarly  with  those  of  legal  age. 

Sec.  8.  It  is  the  general  rule  that  the  contracts 
of  an  infant  are  not  'binding  upon  him,  that  he  has 
the  right  to  disaffirm  them  if  he  desires  to  do  so, 
and  may  disaffirm  before  he  comes  to  legal  age  or 
within  a  reasonable  time  thereafter,  the  time  in 
some  cases  being  fixed  by  statute.  Like  any  other 
voidaible  contract,  that  of  an  infant,  if  not  illegal,  is 
binding  upon  him  until  disaffirmed  in  some  appro- 
priate manner.  What  acts  will  and  what  will  not 
amount  to  a  disaffirmance  is  a  question  concerning 
which  courts  are  not  quite  in  harmony,  and  it  is  a 
question  with  which  we  are  not  to  deal  here.  The 
point  with  which  we  are  concerned  is  that  the  prin- 
ciple upon  which  an  infant,  in  whatever  manner, 
elects  to  treat  his  contract  as  valid  and  binding  is  one 
of  waiver,  for  thereby  he  waives  the  right  to  later 
avoid  the  contract  and  he  must  abide  'by  its  terms. 
But  it  is  said  that  there  can  be  no  ratification  dur- 
ing minority,  and  it,  therefore,  follows  that  a  waiver 
of  the  right  to  avoid  a  contract  on  account  of  in- 
fancy is,  in  fact,  a  waiver  by  a  person  sui  juris  and 
not  'by  an  infant.  Other  questions  of  waiver  by  an 
infant,  not  arising  from  contractual  relations,  must 
be  determined  from  a  consideration  of  the  power 
of  a  guardian  to  waive  rights  belonging  to  his  ward ; 
although  it  is  incumbent  upon  the  infant,  in  some 
instances,  to  take  measures  himself  to  protect  his 
rights  or  they  will  be  held  waived.  Thus,  in  the 
case  of  a  judgment  by  default  against  an  infant, 
rendered  after  personal  service  of  summons  upon 
him,  while  the  judgment  is  voidable  without  the  ap- 


24  THE  LAW  OF  WAIVBB 

pointment  of  a  guardian  ad  litem,  the  infant  must 
take  steps  to  avoid  it  within  a  reasonable  time  after 
attaining  his  majority  or  by  his  acquiescence  he  will 
be  held  to  have  waived  the  right  to  avoid  it." 

Sec.  9.  It  may  be  stated  as  a  general  rule  that 
a  guardian  cannot  waive  any  right  belonging  to  his 
ward  to  the  detriment  of  the  latter,  ox  without  a 
consideration.  Thus,  he  camnot  make  a  voluntary 
release  of  a  debt  due  his  ward4,  nor  waive  the  secur- 
ity for  such  debt5,  nor  an  award  favorable  to  his 
ward" ;  and  he  cannot  waive  the  'bar  of  the  statute  of 
limitations  which  has  already  run7,  nor  release  a 
claim  of  his  ward  to  an  inheritance',  nor  waive  no- 
tice of  proceedings  in  the  settlement  of  an  estate', 
nor,  in  the  trial  of  a  case,  can  he  waive  the  ward's 
right  to  exclude  an  incompetent  witness". 

'Sec.  10.  Further,  a  guardian  has  no  power  to 
waive  jurisdictional  process  for  his  ward  and  enter 
an  appearance  for  him  without  legal  service  of  such 


3.  10  Am.  &  Eng.  Enc.  L.,   692-697. 
Beckley  v.  Newcomb,  24  N.  H.  359. 
Eisenmenger  v.   Murphy,    43   N.   W.   784.      (Minn.) 
In  re  Becker,  28  Hun  207. 

Blake  v.  Douglass,   27  Ind.   416. 
Sharp  v.  Robertson,  76  Ala.  343. 
Brown,  Jur.,  113. 
2  Freeman,  Judgments,  Art.   487. 

4.  Horine  v.  Horlne.  11  Mo.  649. 

Freiberg  v.  De  Lamar,  7  Tex.  Civ.  App.  263;    27  S.  W.  151. 

5.  Blanvelt  v.  Van  Winkle,  29  N.  J.  Eq.  111. 
Dlbrell  v.  Smith,  40  Tex.  447. 

«.     Williams  v.  Mosely,  2  Fla.  304. 

7.  Clement  v.  Slgur,  29  La.  Ann.  798. 

8.  Naeglin  v.  De  Cordoba,  171  U.  S.  638;    19  Sup.  Ct.  R.  35. 

9.  Wade  v.  Bridewell,  38  Miss.  420. 
10.     Hulnig  v.  Hulnlg,  32  111.  App.  519. 


PRELIMINARY  25 

process  upon  his  ward".  The  contrary  of  this  has 
been  held  in  a  case  where  there  was  no  personal 
service  of  summons  upon  the  infant  defendants  but 
their  general  guardian  appeared  and  answered  for 
them.  The  court  held  this  a  sufficient  appearance 
to  give  jurisdiction  over  the  persons  of  the  infants13, 
in  effect  saying  that  a  general  guardian  has  power 
to  waive  service  of  process  upon  his  ward.  But  we 
doubt  the  safety  of  such  doctrine,  and  find  that  the 
preponderance  of  authorities  and  the  weight  of  judi- 
cial thinking  is  to  the  contrary14. 

Sec.  11.  Whatever  the  disagreement  of  the 
courts  as  to  the  power  of  a  guardian  to  waive  per- 
sonal service  of  summons  upon  an  infant,  they  all 
agree  that  an  attorney  has  no  suqh  power".  And  it 
is  held  that  an  attorney  cannot  enter  the  appearance 
of  a  minor  who  has  not  been  brought  into  court  by 
proper  process15.  But  after  the  infant  has  been 


11.  Ha/wes  on  Jurisdiction,  Sec.  231. 
Ingersoll  v.  Mangam,   84   N.  T.   622. 
Greenman  v.  Harvey,  53  111.  386. 

12.  Smith  v.  McDonald,   42   Cal.   484. 

And  See:    Simpson  v.   Belvin,   37  Tex.   674. 
Wrisley  v.  Kenyon,  28  Vt.  6 

13.  Chambers  v.  Jones,  72  111.   275. 
Abdil  v.  Abdil,  26  Ind.  287. 
Young  v.   Young,    91   N.    Car.   359. 
Cormier  v.  De  Valcourt,  33  La.  Ann.  1168. 
jfrazier  v.  Pankey,  31  Tenn.  75. 

Above  cases  of  appearance  by  guardian  ad  litem. 

Haley  v.  Taylor,  39  Ark.  104. 

Kans.  City  Etc.  Ry.  Co.   v.  Campbell,   62  Mo.   585. 

Winston  v.  MoLendon,  42  Miss.  254. 

Good  v.  Morley,  28  la.  188. 

Gcnobles   v.  West,    23    S.   Car.    154. 

Shaefer  v.  Gates,  2  B.  Mon.  453    (Ky.)  ;    38  A.  D.  164. 

14.  Evans  v.  Davies,  39  Ark.  235. 

15.  Bonnell  v.  Holt,  89  HI.  71. 

De  La  Hunt  v.  Holderbaugh,   58  Ind.   285. 

Gamache   v.   Prevost,   71   Mo.   84. 

Somers  v.  Rogers,    26  Vt.   585. 

Valentine  v.  Cooley,  Meigs  613    (Tenn.)  ;    33  A,  D.  166. 


26 

properly  brought  into  court,  a  guardian  ad  lit  em  ap- 
pointed, and  an  attorney  employed  to  represent  the 
interests  of  the  infant,  it  is  thought  that  an  attorney 
has  the  same  power  to  waive  matters  of  practice  and 
procedure  that  he  would  have  were  he  representing 
an  adult;  with  always  the  condition  circumscribing 
the  acts  of  anyone  dealing  with  and  representing 
an  infant — that  such  waiver  shall  be  fairly  and  in 
good  faith  made. 


CONTRACTS  27 

CHAPTER  2. 

CONTRACTS. 

Section 

1.  WAIVER  OF  THE  MANNER  OF  PERFORMANCE— 

A.  By  Acceptance  After  Breach 12 

B.  By  Proceeding  Under  the  Contract  After  a  Breach. .  22 

C.  By  Preventing  The  Other  Party  From  Performing.  .25 

D.  Condition  For  Payment  For  Goods  on  Delivery. . .  .32 

2.  WAIVER  OF  TIME  FIXED  FOR  PERFORMANCE. .  .36 

A.  Performance  Prevented  By  The  Promisee 43 

B.  Time  Held  Not  Waived 45 

3.  WAIVER  OF  TENDER  OF  PERFORMANCE— 

A.  General  Rules 46 

B.  Acts  Held  Not  A  Waiver 51 

4.  WAIVER  OF  FORFEITURES— 

A.  General  Rules 52 

B.  In  Deeds  and  Land  Contracts 56 

C.  In   Leases 60 

5.  WAIVER  OF  THE  RIGHT  TO  RESCIND 65 

1.     WAIVER  OF  THE   MANNER  OF  PERFORMANCE. 

A.    BY  ACCEPTANCE  AFTEE  BREACH  :— 

Sec.  12.  It  is  a  general  rule  that  one  who  is  entitled 
to  full  performance  of  a  contract  by  the  other  party 
to  it,  by  accepting  the  part  performance  offered,  or 
by  accepting  the  article  delivered  as  a  compliance 
with  the  contract,  waives  the  right  to  object  to  a  de- 
ficiency in  the  performance  or  in  the  quality  of  the 
article  delivered.  This  general  rule  is  subject  to 
several  exceptions  to  be  presently  noted. 

Acceptance,  to  constitute  a  waiver,  must  be  with 
full  knowledge  of  the  defects  in  performance  or  in 
the  article  delivered,  or  the  defects  must  be  discov- 


28  THE  LAW  OF  WAIVER 

erable  upon  inspection,  or  there  must  be  such  cir- 
cumstances as  will  impute  knowledge  of  the  defects 
or  the  imperfect  performance.  One  cannot,  how- 
ever, close  his  eyes  and  refuse  to  see  defects  and 
then  defend,  after  an  acceptance  or  user,  against  an 
improper  performance.  He  must  use  reasonable 
diligence  to  discover  defects,  and  if  he  fails  to  do 
so,  his  acceptance  will  be  held  a  waiver  of  them. 

Sec.  13.  The  question  of  whether  an  accept- 
ance constitutes  a  waiver  of  defects  or  defective 
performance  depends,  to  a  vast  extent,  upon  the 
subject-matter  of  the  contract.  One  is  practically 
always  at  liberty  to  refuse  an  article  of  personal 
property  if  specifications  of  a  contract  in  regard  to 
it  have  not  been  lived  up  to.  But  it  is  not  so  if  the 
contract  concern  realty.  The  owner  of  the  latter 
must  either  accept  the  premises  with  the  defective 
work  upon  them — it  matters  not  how  flagrant  the 
violations  of  the  contract  may  have  been  by  the 
other  party — or  he  must  abandon  the  use  and  en- 
joyment of  his  estate.  And  for  this  reason,  user  or 
occupancy  of  premises,  if  deemed  and  held  an  accep- 
tance, do  not  necessarily  waive  improper  perform- 
ance of  work  upon  them. 

Sec.  14.  And  the  necessities  of  the  case  may  be 
such  that  a  party  is  bound  to  accept  imperfect  per- 
formance for  the  reason  that  he  has  no  alternative. 
In  such  case,  acceptance  cannot  be  held  a  waiver. 
The  reason  of  this  is  clear,  and  it  applies  as  well  to 
buildings,  ditches,  wells  and  other  structures  on 
realty  as  to  articles  of  personal  property  the  ac- 
ceptance of  which  is  in  the  nature  of  things  com- 
pulsory. A  primary  ingredient  of  waiver  is  Intent. 
.Without  it — or  its  substitute,  misleading  conduct — 


CONTRACTS  29 

there  can  be  no  waiver.  And  in  the  class  of  cases 
under  consideration,  where  a  party  has  no  option, 
no  course  but  one  to  pursue,  he  cannot  be  held  on 
account  of  mere  passive  use  or  occupancy  to  have 
intended  to  forego  the  right  to  object  to  a  defective 
performance.  And  this  is  true  whether  the  ac- 
ceptor knew  of  the  defects  or  not.  It  is  especially 
true,  as  an  exception  to  the  general  rule-,  that  latent 
defects  in  a  work,  those  that  are  not  open  to  inspec- 
tion, are  not  waived  by  an  acceptance. 

Sec.  15.  The  authorities  are  not  harmonious 
concerning  the  principles  above  outlined,  but  the 
weight  of  authority  is  in  support  of  those  an- 
nounced. 

Thus,  in  the  absence  of  a  warranty  intended  to 
survive  acceptance,  a  vendee  of  personal  property 
who,  after  an  opportunity  to  inspect  it,  accepts  it, 
waives  the  right  to  object  on  account  of  visible  de- 
fects therein16.  This  is  equally  true  in  an  executory 
contract  for  the  manufacture  and  sale  of  an  article 
of  personalty17.  But  where  defective  machinery, 
made  under  a  contract  for  a  first  class  outfit,  is  con- 
structed on  the  premises,  the  owner  does  not  waive 
a  claim  for  damages  by  accepting  it  and  making  the 
best  of  the  situation18.  An  owner  of  realty,  who  en- 


16.     Day  v.  Mapes-Reeve  Co.,  174  Mass.  412  ;    54  N.  E.  878. 

Talbot  Pvg.  Co.  v.  Gorman,   103   Mich.   403  ;     61   N.  W.   655 ;    27 
L,.  R.  A.   96. 

Reed  v.  Randall,   29  N.  Y.  358 ;    86  A.  D.  80S. 

Pierson  v.  Crooks,  115  N.  T.  539;    22  N.  B.  349;    12  A.  S.  R.  831. 

(Wiaeber  v.  Talbot,  167  N.  T.  48;    60  N.  E.  288;    82  A.  S.  R.  712. 
IT.     Studer  v.  Blelstein,  115  N.  T.  316  ;    22  N.  E.  243  ;    5  L..  R.  A.  702. 

Harris  Co.  v.   Campbell,   68   Tex.   22;    8   S.  W.  243. 

Norton  v.  Dreyfuss,   7  Cent.   Rep.   106   N.  T.   90 ;    12  N.  E.   4J8. 

Black  River  Lbr.    Co.  v.  Warner,    93    Mo.   374. 
18.     Payne  v.  Amos  Kent  B.  Co.,  110  La.  750 ;    34  So.  763. 

Manitowoc  S.  B.  Works  v.  Glue  Co.,  120  Wis.  1;    97  N.  W.  515. 


30  THE  L'AW  OF  WAIVER 

ters  into  possession,  use  and  enjoyment  of  a  build- 
ing constructed  thereon,  does  not  ordinarily  waive 
a  full  compliance  by  the  contractor  with  his  contract 
to  erect  the  building19.  This  has  been  held  on  the 
theory  that  the  owner  has  no  choice  but  to  accept, 
and  the  acceptance  thereby  becomes  in  its  nature  in- 
voluntary20, and  on  the  further  theory  that  the  own- 
er does  not  accept  possession  as  he  has  never  been 
out  of  possession21. 

Latent  defects,  especially,  are  not  waived  by  an 
acceptance  of  the  work,  nor  by  payment  of  the  con- 
tract price,  nor  'by  occupancy  of  a  building  built  un- 
der the  contract  involved22.  And  even  if  such  pay- 
ment had  been  made,  or  such  acceptance  or  occu- 
pancy occurred,  the  owner  could  recover  damages 
for  the  defects  subsequently  discovered23. 

Sec.  16.  The  foregoing  principles  have  been  by 
a  great  many  authorities  modified  or  rendered  less 
arbitrary  by  what  has  been  termed  "the  more  mod- 
ern rule"24.  This  rule  is  only  an  intensive  applica- 


19.  Monford  v.  Martin,   22   Ky.   609;     17   A.   D.    168. 
Kilbourne  v.  Jennings,  40  la.  473. 

Mitchell  v.   Wiscotta  Land   Co..    3    la.    209. 

Faulkner  v.  Cornell,  80  N.  Y.  Supp.  526. 

Stewart  v.  Fulton,  31  Mo.   59. 

Feeney  v.  Bardsley,  66  N.  J.  L.  239 ;    49  Atl.  443. 

Yeates  v.  Ballentine,  56  Mo.  58-0. 

Anderson  v.  Todd,   8  N.  Dak.   158;    77  N.  W.   599. 

Hartupee   v.   Pittsburg,    97   Pa.    107. 

20.  Bozarth  v.  Dudley,  44  N.  J.  L.  304;    43  A.  R.  373. 

21.  Smith  v.  Brady,   17  N.  T.   173;    72  A.  D.   442. 
Franklin    v.    Schultz.    23    Mont.    1&5 ;     57    Pac.    1037. 

22.  Korf  v.  Lull,  70  111.  420. 

Ekstrand  v.   Barth,   41  Wash.   321;     83   Pac.   306. 

23.  Ludlow  v.  Kuhling,   119   Ky.   251;    83   S.  W.    634;     115  A.   8.   R. 

264. 
Flannery  v.  Rohrmayer,  46  Conn.  558;    33  A.  R.  36. 

24.  McDonough  v.  Marble  Co.,  112  Fed.  634;    60  C.  C.  A.  403. 


CONTRACTS  31 

tion  of  the  doctrine  of  Substantial  Performance,  to 
be  presently  discussed.  By  the  strict  rule  of  the 
common  law,  one  promising  to  deliver  articles  of 
personal  property,  or  to  perform  services,  or  mak- 
ing the  performance  by  him  of  any  other  contract  a 
condition  precedent  to  payment  or  performance  by 
the  other  party,  thus  making  the  contract  entire, 
must  show  a  complete  and  full  performance  before 
he  can  hold  the  other  party  liable.  A  partial  per- 
formance entitled  him  to  nothing.  He  was  held  to 
the  very  letter  of  his  engagement.  But  for  many 
years  a  tendency  has  been  manifested  to  soften  the 
harshness  of  this  doctrine,  and  to  instill  into  its  ap- 
plication principles  of  equity  and  justice  that,  on 
the  one  hand,  will  prevent  you  from  being  exempt 
from  payment  for  services  which  I  render  you,  and, 
on  the  other  hand,  will  give  to  me  only  the  just  and 
reasonable  compensation  which  those  services  have 
been  worth  to  you. 

Sec.  17.  Some  courts  have  gone  very  far  in  the 
application  of  this  last-named  principle.  One  of  the 
first,  and  perhaps  one  of  the  leading  cases  showing 
an  abrupt  and  radical  departure  from  the  strictness 
of  the  common-law  rule  is  from  the  New  Hampshire 
Supreme  Court25,  and  since  the  decision  in  that  case, 
difficulty  in  finding  and  applying  the  true  rule  has 
increased.  It  has  been  determined  by  those  courts 
that  have  gone  farthest  in  their  departure  from  the 
common-law  rule  that,  even  under  a  willful  abandon- 
ment of  a  contract  or  a  refusal  of  performance  with- 
out a  justifiable  excuse,  a  party  may  recover  what 


25.     Britton  v.  Turner,  6  N.  H.  481. 


• 


32  THE  LAW  OF  WAIVER 

his  services  or  materials  accepted  or  retained  by  the 
other  party  were  reasonably  worth,  subject  only  to 
the  latter 's  claim  for  damages  by  reason  of  the  in- 
complete performance26.  Following  this  line  of  au- 
thorities, recovery  may  be  had  for  the  reasonable 
value  of  work  under  a  contract  which  the  employe 
has  abandoned  prior  to  the  expiration  of  his  term  of 
employment27.  Thus,  recovery  may  be  had  for  a 
number  of  articles  of  personal  property  delivered,  a 
greater  number  having  been  contracted  to  be  de- 
livered28 ;  for  400  bushels  of  corn,  1,000  having  been 
contracted  for29;  and  for  a  building  not  completed 
in  substantial  compliance  with  the  contract,  but 
taken  possession  of  by  the  owner30.  The  doctrine  of 
these  authorities  is  based  on  an  acceptance  by  the 
promisee  and  a  resulting  benefit  to  him  from  the  par- 
tial or  imperfect  performance  by  the  contractor ;  and 
the  acceptance  is  held  to  amount  to  a  waiver  of  the 
defective  performance. 


26.  McDonough  v.  Marble  Co.,  112  Fed.  634;  50  C.  C.  A.  403. 
Wolf  v.  Gerr,  43  la.  339. 

McClay  v .  Hedge,  18  la.  66. 

Filler  v.  Nichols,  8  la.  106 ;  74  A.  D.  298. 

Barnwell  v.  Kempton,  22  Kans.  99. 

Hayward  v.  Leonard,  7  Pick.  181 ;  19  A.  D.  268. 

Parcell  v.  McComber,  11  Neb.  209 ;  7  N.  W.  529 ;  35  A.  R.  476. 

Bedow  v.  Tonkin,  5  S.  Dak.  432 ;  59  N.  W.  222. 

Hlllyard  v.  Crabtree,  11  Tex.  264 ;  62  A.  D.  475. 

27.  Brltton  v.  Turner,  6  N.  H.  481. 
Lamb  v.  Brolaskl,  38  Mo.  51. 

Pixler  v.  Nichols,  8  la.  106 ;  74  A.  D.  298. 
McKlnney  v.  Springer,  3  Ind.  59 ;  54  A.  D.  470. 
Duncan  v.  Baker,  21  Kans.  99. 
Riggs  v.  Horde,  25  Tex.  Sup.  456;  78  A.  D.  584. 
Hollls  v.  Chapman,  36  Tex.  1. 

28.  Saunders  v.  Short,  86  Fed.   225;  30  C.  C.   A.  462. 
Watson  v.  Kirby,  112  Ala.  436 ;  20  So.  624. 

29.  Bowker  v,  Hoyt,  18  Pick.  555. 

30.  Lyon  Dist.  v.  Lund,  51  Kans.  731 ;  33  Pac.  595. 
Davis  v.  Badders.  95  Ala.  348  ;  10  So.  442. 


CONTRACTS  33 

Sec.  18.  There  is  yet,  however,  a  great  array 
of  authorities  standing  on  the  opposite  extreme  and 
holding  in  conformity  with  the  old  rule  that  where  a 
contract  is  entire,  strict  performance  is  a  condition 
precedent  to  the  payment  of  the  contract  price,  and 
that  mere  acceptance  or  use  of  the  contractor's  labor 
or  its  products  will  not  constitute  a  waiver  of  full 
performance31.  The  reasoning  on  which  this  rule  is 
based  is  well  stated  by  the  Massachusetts  court, 
speaking  through  Norton,  J. :  '  *  The  plaintiff  cannot 
recover  on  his  express  contract,  because  he  has  not 
executed  it  on  his  part,  and  the  performance  is  a  con- 
dition precedent  to  the  payment.  He  cannot  recover 
on  a  quantum  meruit  for  the  labor  he  has  performed, 
because  an  express  contract  always  excludes  an  im- 
plied one  in  relation  to  the  same  matter"32. 

Sec.  19.  But  between  these  two  extremes  is  a 
better  rule  which  has  come  to  be  recognized  by  most 
of  the  states,  either  applied  in  its  entirety  or  by 
close  approaches.  Where  a  contractor,  without 
fraud,  or  willful  and  inexcusable  abandonment  of 
his  contract,  does  the  work  in  good  faith,  but  not  in 
exact  accord  with  the  terms  of  .the  contract,  and  the 
departure  from  its  terms  is  technical  or  inconsequen- 
tial, the  owner,  by  using  or  accepting  the  work  or  re- 
ceiving benefits  from  it,  will  be  deemed  to  have 
waived  strict  compliance  and  will  be  liable  for  the 
reasonable  value  of  the  services  or  materials,  less 
any  damage  he  may  have  suffered  by  reason  of  a 


81.     Brown  v.  Fitch,  33  N.  J.  L.  418. 

Haslock  v.  Mayers,  2  Dutcher  284  (N.  J.). 

Monford  v.  Mastin,  17  A.  D.  168   (Ky.). 
32.     Olmstead  v.  Beale,  19  Pick.  538. 


34  THE  LAW  OF  WAIVER 

failure  of  performance33.  This,  too,  is  based  on  the 
condition  that  the  contractee  has  retained  the  work 
or  its  proceeds,  and  that  he  has  received  from  them 
benefits  in  excess  of  the  damage  caused  him  by  the 
departure  from  the  terms  of  the  contract34,  and  on 
the  further  condition  that  the  non-compliance  with 
the  contract  was  not  fraudulent35,  nor  willful  and  un- 
justifiable on  the  part  of  the  contractor.36 


33.     Moffit  v.  Glass,   117   N.  Car.  142  ;    23   S.  E.  104. 
Dutro  v.  Walker,  31   Mo.   516. 
Goldsmith  v.  Hand.   26   Oh.   St.   101. 
Bell  v,  Teague,   85   Ala.   211;    3    So.   861. 
Estop  v.   Fulton.   66  111.  467. 
McClure   v.   Seerist.   5   Ind.   31. 
Blakeslee  v.  Holt,  42  Conn.  228. 
White  v.  Oliver,   36  Me.   92. 

Eaton  v.  Gladwell,  121  Mich.  444  ;    80  N.  W.  292. 
Schaefer  t/.  Gildea,   3  Colo.   15. 

Harris  Co.  v.  Campbell,  68  Tex.  22  ;    3  S.  W.  243  ;    2  A.  S.  R.  467. 
Gallagher  v.  Sharpless,  134  Pa.  134;    9  Atl.  491. 
Meincke  v.  Talk.  61  Wis.  623  ;    21  N.  W.  785  ;    50  A.  R.  157. 
Smith  v.  Packard,  »4  Va.  730;    27   S.  E.  586. 
Fitzgerald  v.  La.  Pate,  64  Ark.  34;    40  S.  W.  261. 
HH1  v.  McKay,  94   Cal.   5;    29  Pau.   406. 
Aetna,  etc.,   Co.  v.  Kossuth  Co.,   79   la.   40;    44  N.  W.   215. 
Hattin  v.  Chase,  88  Me.  237;    33  Atl.  989. 
Leeds  v.  Little,  42  Minn.  414;    44  N.  W.  309. 

Crouch  v.  Guttmann,   134   N.   T.   45;    31   N.  EX   271 ;   30  A,  S.   R. 

603. 
Dermott  v.  Jones,  69  U.  S.  1   (2  Wall.)  ;    17  L.  Ed.  762. 

Elizabeth  v.  Fitzgerald.  114  Fed.  547;    52  C.  C.  A.  321. 
14.     Broughton  v.  Smith.  142  N.  Y.  674 ;    37  N.  E.  470. 

Genni  v.  Hahn,  82  Wis.  90;    51  N.  W.  1096. 

Remy  v.  Olds,   88  Cal.   537  ;    26  Pac.  355  ;    21  L.  R.  A.   645. 

Peacock  v.  Gleason,   117  la.   291 ;    90  N.  W.   610. 
SI.     Schmidt  v.  No.  Takima,  12  Wash.   121;    40  Pac.  790. 

Veazie  v.  Bangor,  53  Me.  51. 
36.     Coburn  v    Hartford,  38  Conn.  290. 

Thrift  v.  Payne,   71   111.   408. 

Escott  v.  White,  10  Bush  (Ky.)   169. 

Thayer  v.  Wadsworth,  19  Pick.   349    (Mass.). 

Boheible  v.  Klein.  89  Mich.  376;    50  N.  W.  857. 

Elliott  v    Caldwell,  43  Minn.  357  ;  45  N.  W.  845;  91*  R.  A.  52. 

Posey  v.  Garth,  7  Mo.  94;    37  A.  D.  183. 

Gmther  v.  Schultz,   40   Oh.   St.   104. 

Tan  Clief  v.  Van  Vetchen,  130  N.  Y.  571;    20  N.  E.  1017. 


CONTRACTS  35 

Sec.  20.  The -cases  folio  wing- the  rule  first  above 
mentioned  are  diametrically  opposed  to  this  holding 
as  to  the  breach  of  the  contract's  being  willful  and 
unjustifiable.  But  the  last-named  rule  seems  to  cov- 
er all  points  of  justice  between  man  and  man,  saying 
to  the  contractor,  as  it  does,  "you  must  use  every 
honest  effort  to  discharge  the  terms  of  your  obliga- 
tion with  strictness  and  correctness,  and  if,  after 
such  efforts,  you  have  not  abandoned  the  contract 
willfully,  but  your  work  under  it  is  a  substantial 
compliance  with  its  conditions  and  of  benefit  to  the 
owner,  then  he  shall  pay  you  as  much  as  it  is  reason- 
ably worth  to  him";  and,  on  the  other  hand,  saying 
to  the  owner,  "you  shall  not  insist  upon  enjoying  the 
garner  of  another's  gleaning  without  paying  for  his 
labor,  but  he  shall  answer  to  you  for  any  damage  you 
have  suffered  by  reason  of  the  incompleteness  or 
imperfection  of  his  gleaning,  and  you  to  him  only  for 
the  benefits  you  have  received  therefrom."  It  will 
be  observed  that  the  discussion  herein  applies  only 
to  entire  contracts.  If  the  contract  be  sever  able,  of 
course  the  accepting  of  any  portion  as  performance 
progresses  renders  the  acceptor  liable  as  if  that  por- 
tion constituted  the  whole  contract. 

iSec.  21.  The  acceptance  or  retention  of  benefits 
after  the  non-performance  OT  imperfect  performance 
of  a  contract  is  a  waiver  of  any  right  to  consider  such 


Harris  v.   Sharpless,   202  Pa.  St.  243;     51  Atl.  965;     68   L.  R.   A. 

214. 

Marshall  v.  Jones,  11  Me.  54 ;    25  A.  D.   260. 
Fairfax  Co.  v.  Chambers,  75  Md.  604  ;    23  Atl.   1024. 
Steamboat  Co.  v.  Wilkins,  8  Vt.  54. 
Steeples  v.  Newton,  7  Or.  110;    33  A.  R.  705. 
Feeney  v.  Bardsley,  66  N.  J.  L.  239 ;    49  Atl.  443. 
Vlcksburg  Co.  v.  Gorman,  70  Miss.   360 ;    11   So.  680. 
Marchant  v.  Hayes,  117  Cal.  663 ;    49  Pac.  840. 


36  THE  LAW  OF  WAIVER. 

breach  a  discharge  or  release  from  the  contract37. 
But  the  acceptor  does  not  thereby  waive  his  claim 
for  damages  on  account  of  such  breach38.  This  is 
justly  so  for  the  reasons  hereinabove  adverted  to, 
that  very  often  one  in  no-wise  in  default  may  be 
compelled  by  the  exigences  of  the  case  to  content 
himself  with  what  is  offered  by  the  other  party.  And 
in  such  case,  in  making  the  best  of  a  bad  situation,  he 
should  not  be  robbed  of  a  remedy  that  would  permit 
him  to  measure  accounts  with  his  adversary  and 
thereby  strike  the  true  balance.  This  is  especially 
true  of  contracts  for  the  sale  of  chattels  with  either 
express39  or  implied40  warranty.  And  though  in  this 
class  of  cases  much  difference  of  opinion  has  been 
expressed  as  to  whether  the  vendee  can  accept  and 
retain  the  chattels  with  knowledge  of  their  defects 
or  an  opportunity  to  inspect  them,  and  yet  recoup 
his  damages  against  the  purchase  price,  the  weight 
of  authority  is  decidedly  to  the  effect  that  that  he 
does  not  thereby  waive  his  right  to  damages  on  ac- 
count of  such  defects41.  And,  whether  the  chattels 
are  warranted  or  not,  a  claim  for  damages  is  not 
waived  where,  at  the  time  of  delivery,  the  purchaser 

37.  Brady  v.  Cassidy,  145  N.  T.   171;    39  N.  E.  814. 

38.  Cannon  v.  Hunt,  116  Ga.  462  ;    42  S.  E.  734. 

Underwood  v.  Wolf.   113   111.   425.   23  N.  E.   598;   19  A.  S.  R.   40. 
Flannery  v.  Rohrmayer,  46  Conn.  558;    33  Atl.  36. 
Bucklin  v.  Davidson.  156  Pa.  St.  362 ;    26  Atl.  643. 
Garfleld  Co.  v.  Ry.,  166  Mass.   119;    44  N.  E.   119. 
Payne  v.  Lumber  Co.,  110  La.  750;    34  So.  763. 

39.  Morse  v.  Moore,   83   Me.  473;    22  Atl.  362;     23   A.   S.  R.   783;     13 

L.  R.  A.   224. 

40.  FrJth  v.  Hollan,   133  Ala.   583  ;     32   So.  494 ;    91  A.   S.  R.  54. 

41.  English  v.   Spokane  Co.,    57   Fed.   451. 

N.    W.    Cordage    Co.    v.    Rice,    5    N.    Dak.    432;     67    N.    W.    298; 

57   A.   S.   R.   563. 
Tacoma  Co.  v.  Bradley,  2  Wash.  600 ;    26  Pac.  454 ;    26  A.  S.  R. 

890. 
Woodruff  u.  Graddy.  91  Ga.  333 ;    17  S.  E.  264 ;    44  A.  S.  R.  33. 


CONTRACTS  37 

objects  to  the  defects  and  stipulates  that  the  receipt 
shall  not  be  deemed  an  acceptance42. 

B.  BY  PROCEEDING  UNDER  THE  CON- 
TRAOT  AFTER  A  BREACH :— Sec.  22.  Although 
one  party  to  a  contract  may  be  in  default  in  comply- 
ing with  his  part  of  the  obligation,  yet  if  the  other 
treat  the  contract  as  still  in  force  and  proceed  under 
it,  he  will  be  held  to  have  waived  the  default  in  per- 
formance43. And  if  a  person  having  work  done  is  at 
hand  with  fair  opportunities  to  inspect  the  work  as  it 
progresses,  and  does  make  such  inspection,  but  makes 
no  objection  to  defects  in  the  work,  and  accepts  is  as 
full  compliance,  he  waives  all  right  to  thereafter 
claim  damages  for  such  defects  as  a  careful  inspec- 
tion would  have  disclosed44. 

Sec.  23.  But  it  is  not  every  act  of  proceeding 
under  a  contract  that  will  constitute  a  waiver  of  de- 
faults theretofore  made  by  the  other  party.  To  have 
this  effect,  the  proceeding  must  be  with  knowledge 
that  the  breach  exists,  and  the  words  or  acts  relied 
on  as  a  waiver  must  be  inconsistent  with  any  other 
intention.  And  under  this  doctrine  it  has  been  held 
that  the  taking  possession  of  a  building  in  which  de- 
fective finishing  material  has  been  put  does  not 
waive  the  owner's  right  to  damages  on  account  of 
such  defects  if  an  inspection  would  not  have  brought 


42.  Blackwood   v.   Cutting   Co.,    76    Cal.    212;     18   Pac.    248;     9   A.    S. 

R.  199. 

43.  McCord  v.  Ry.   Co.,   3   La.   Ann.   285. 
Eyester  v.  Parrott,  83  111.  51". 

Smith  v.  Alker,   102  N.  T.  87;    5  N.  E.  791. 
Murray  v.  Farthing,  6  Mo.  251. 

44.  U.    S.   v.   Walsh,    108    Fed.    502. 
Hinshorn  v.  Stewart,  49   la.  418. 

Pierson  v.  Crooks,  115  N.  Y.  316;    22  N.  E.  349;    12  A.  S.  R.  83. 


38  THE  LAW  OF  WAIVER 

them  to  light  until  after  the  wood  had  seasoned45. 
So,  delivering  several  loads  of  materials  without  re- 
quiring pay  for  same,  where  the  contract  provided 
for  payment  for  each  load  as  delivered,  is  not  a 
waiver  of  the  provision;  and  under  the  same  rule, 
acceptance  of  fifty  out  of  a  hundred  fish  stands  con- 
tracted to  be  delivered  and  refusal  of  the  other  fifty 
on  account  of  defects  therein  cannot  'be  held  a  waiver 
of  such  defects46.  And  a  waiver  of  the  right  to  dam- 
ages for  defective  machinery  does  not  occur  by  rea- 
son of  payment  of  the  purchase  price  before  comple- 
tion of  the  machinery47.  Nor  does  occupancy  of  a 
building  waive  a  right  to  damages  for  defects  in  the 
plastering  thereof  which  only  time  will  show  and  by 
reason  of  which  the  plastering  finally  falls  off48. 
Nor  would  such  be  a  waiver  of  any  other  defects  that 
were  not  discoverable  at  the  time  possession  was 
taken  by  the  owner49.  This  is  only  another  applica- 
tion of  the  rule  hereinbefore  mentioned  that  accept- 
ance of  work  does  not  waive  latent  defects,  or  those 
riot  known  to  the  owner  and  not  discoverable  upon 
inspection50. 

Sec.  24.  The  question  of  the  waiver  of  a  default 
in  the  performance  of  a  contract  in  this,  as  in  nearly 
all  other  connections,  is  a  question  of  intent  to  be 
gathered  from  either  the  acts  or  words  of  the  parties. 
And  in  the  case  of  any  breach  as,  for  instance,  not 


45.  Utah  Lbr.  Co.  v.  James,  25  Utah  434;    71  Pac.  986. 

46.  Oardner  v.  Clark,  21  N.  Y.  399. 
Freeman  v.  Skinner,  31  N.  Car.  32. 

47.  Industrial  "Works  v.  Mitchell,  114  Mich.  29 ;    72  N.  W.  25. 

48.  ftlonahan  v.  Fitzgerald,  164  111.  625;    45  N.  E.  1013. 

49.  Splnk  v.  Mueller,  77  Mo.  App.  85. 
60.     Korf   v.    Lull,    70    111.    422. 

Van  Buskirk  v  Murden,  22  111.  446 ;    74  A.  D.  163. 


CONTRACTS  3i 

completing  the  contract  within  the  time  specified,  if 
the  contractee,  with  knowledge  of  the  breach,  permit 
the  other  party  to  continue,  there-by  recognizing  the 
contract  as  still  in  force,  he  waives  the  default51. 

C.  BY  PREVENTING  THE  OTHER;  PARTY 
FROM  PERFORMING:— Sec.  25.  One  party  to  a 
contract  who,  by  his  conduct,  prevents  the  other 
party  from  following  strictly  the  letter  of  his  obliga- 
tion cannot  be  heard  to  complain  that  the  other  is  in 
default  in  performance,  for  by  such  preventing  of 
full  performance  he  waives  the  right  to  de- 
mand it52.  And  he  cannot  recover  damages 
on  account  of  such  non-performance53.  But, 
on  the  other  nand,  such  prevention  operates  as  a 
waiver  or  discharge  of  the  contract54,  and  if  the 
contractor  has  suffered  damages  by  reason  thereof, 
he  may  recover  them  of  the  contractee55.  And  in 


61.  Sinclair  v.  Tailmadge,   35  Barb.   602. 
Foster  v.  Worthmgton,  58  Vt.  65  ;    4  Atl.  565. 

Phil.  Con.  Co.  v.  Seymour,  91  U.  S.  646;    23  L.  Ed.  341. 

62.  White  v.  School  Dist.,  1B9  Pa.  St.  201 ;    28  Atl.  136. 
U.  S.  v.  Peck,  102  U.  S.  64. 

Day  v.  Jeffords,  102  Ga.  714;    29  S.  E.  591. 

Blodgett  v.  Company,   120  Fed.   893. 

U.  S.  v.  Jack,  124  Mich.  210;    82  N.  W.  1049. 

Laybourne   v.   Seymour,    53    Minn.    105;     54    N.    W.    941;     39    A. 

S.  R.   579. 
53.     Dis.  of  Col.  v.  Iron  Works,   181  U.  S.   453. 

Maher  v.  Lbr.  Co.,  86  Wis.  530  ;    57  N.  W.  357. 

Wyandotte  Ry.  v.  Brdg.  Co.,  100  Fed.  197;    40  C.  C.  A.  325. 

Blymer  Co.  v.  McDonald,   48  La.  Ann.  439;    19   So.   459. 

Davis  v.   Light  Co.,   57   Minn.   402;     59   N.  W.    482;     47   A.  S.   R. 
622. 

Murphy  v.  Orul,  185  Pa.   St.   250;    39  Atl.   959. 

Antonelle  v.  Lbr.  Co.,  140  Cal.  309;    73  Pac.  966. 
64.     Stark  v.  Duval!,  7  Okla.  213 ;    54  Pac.  453. 

Lovell   v.   Ins.   Co..    11   U.    S     264. 

Eames  v.  Savage,  14  Mass.  425. 

Mooney  v.  Iron  Co.,  82  Mich.  263;    46   S.  W.  376. 

Meyser  v.   Rehberg,   16   Mont.   331 ;     41    Pac.  74. 
55.     Langfc/rd  v.  U.  S,  95  Fed.  933. 

Atl.  Ry.  Co.  v.  Const.  Co.,  98  Va.  503  ;    37  S.  E.  13. 


40  THE  LAW  OF  WAIVES 

such  case,  too,  the  contractor  may  recover  for  what 
he  has  done  without  showing  a  full  performance  of 
the  contract  on  his  part36.  Thus,  a  seller  of  chattels 
who  is  prevented  from  delivering  a  part  of  the  goods 
contracted  for  by  the  act  of  the  vendee  is  released 
from  further  performance,  and  he  may  recover  from 
the  vendee  the  full  price  of  the  goods  already  de- 
livered57. And  where  the  payee  of  a  debt  was  to  re- 
ceive in  payment  a  certain  amount  of  sawing  annual- 
ly, it  was  held  that  by  his  failure  to  furnish  the  logs 
necessary  for  sawing  he  prevented  the  other  party 
from  performing  his  part  of  the  contract,  thereby 
waived  such  performance,  and  could  not  later  recover 
the  debt58.  Though  a  contract  to  make  brick  does 
not  provide  that  the  employer  shall  furnish  supplies 
to  the  employe,  but  he  understands  that  it  will  be 
necessary  for  him  to  do  so,  and  he  does  so  furnish 
them  for  a  time,  a  discontinuance  to  do  so  will  op- 
erate as  a  prevention  of  performance  by  the  employe 
and  release  him  from  any  further  obligation  under 
the  contract69.  Where  a  vendee  of  logs  has  prevented 
and  thereby  waived  full  performance  by  the  vendor, 
the  latter  is  still  bound  by  a  scale  and  measurement 
agreed  upon  as  to  the  logs  already  delivered00.  An 
attorney  accepted  a  note  to  defend  one  charged  with 


66.  North  v.  Mallory,  94  Md.  305  ;    61  Atl.  89. 

Parker   v.  McComber.    17    R.   I.   674;     24   Atl.   464;     16   L    R    A 

858. 

East  Granite  Co.  v.  Helm.  89  la.  698;    57  N.  W.  437. 
Teakle  v.  Moore,   131   Mich.  427;    91  N.  W.   636. 
Newhal  Co.  v.  Daly.  116  Wis.  256;    93  N.  W.   12. 

67.  Hartlove  v.  Durham,  86  Md.  689  ;    39  Atl.  617. 

68.  Fredenburg  v.  Turner,   37  Mich.   402. 
Stinson  v.  Freeman,  38  Mich.  314. 

69.  Rioux  v.  Ryegate  Brick  Co.,  72  Vt.  148  ;    47  Atl.  406. 
<0.     Eakright  v.  Torrent,   105  Mdch.  294;    63   N.  W.   292. 


CONTRACTS  41 

crime;  before  trial  the  latter  committed  suicide;  it 
was  held  that  the  attorney,  having  been  prevented  by 
the  other  party  from  performing,  could  recover  on 
the  note,  and  that  a  plea  of  failure  of  consideration 
could  not  be  entertained61. 

Sec.  26.  A  waiver  of  performance  being  attrib- 
uted to  the  one  who  prevents  performance  by  the 
other  party,  it  has  been  held  that  the  latter  has  three 
means  of  redress,  any  one  of  which  he  may  pursue : 

1.  He  may  sue  immediately  for  special  damages; 

2.  He  may  await  the  expiration  of  the  contract  per- 
iod and  sue  for  full  compensation;  or,   3.    He  may 
sue  at  once  on  a  quantum  meruit62.    And  even  in  a 
contract  void  under  the   statute  of  frauds,  if   one 
party  has  partly  performed  and  the  other  repudiates 
the  contract,  the  latter  cannot  escape  liability  for 
such  part  performance63,  and  he  is  liable  even  to  the 
extent  of  refunding  payments  already  received  by 
him  under  the  contract64.    If  in  a  contract  to  sell  a 
mare  she  is  to  come  up  to  certain  tests,  a  purchaser 
cannot  escape  liability  by  failing  or  refusing  to  make 
the  tests65.    Under  a  contract  for  the  sale  of  a  heat- 
ing plant  in  which  the  vendor  is  to  have  a  year  in 
which  to  cure  any  defects,  the  vendor  may  recover 
the  contract  price  if  the  plant  be  removed  within  the 
year66. 

Sec.  27.  The  rule  is  very  frequently  applied  in 
cases  of  building  contracts,  and  in  these,  as  in  other 


61.  Mitcherson  v.  Dozier.   22  A.  D.   116    (Ky.). 

62.  Beck  v.  Spice  Co.,   108  Ga.  242  ;    3   S.  B.  894. 

63.  Lockwood  v.  Barnes.  3  Hill  128;    38  A.  D.  620. 

64.  Moody  v.  Smith.  70  N.  Y.  600. 

65.  Deyo  v.  Hammond,  102  Mich.  122;    60  N.  W.  455;    25  L.  R.  A. 

719. 

66.  Lehman  v.  Webster,  209  111.  264;    70  N.  E.  600. 


42  THE  LAW  OF  WAIVER 

contracts,  it  is  held  that  one  cannot  cause  the  other 
to  default  in  his  obligation  and  yet  hold  him  liable 
for  non-performance  nor  escape  liability  for  such  in- 
terference67. Thus,  if  repairs  and  alterations  become 
necessary  by  reason  of  defective  plans  furnished  by 
the  owner,  the  contractor  is  not  liable  for  damages 
caused  thereby68.  Where  a  party  agreed  to  deliver 
coal  for  a  year  at  a  stated  price,  and  did  so  during 
the  season  that  the  market  price  was  above  the  con- 
tract price,  the  purchaser  could  not  abandon  the  con- 
tract and  refuse  to  take  the  coal  during  the  season 
that  the  market  price  was  below  the  contract  price; 
and  on  his  refusal  to  take  the  coal  the  seller  could  re- 
cover the  difference  between  the  market  price  and 
the  contract  price69. 

Sec.  28.  The  voluntarily  making  it  impossible 
to  perform  a  contract  is  equivalent  to  prevention ; 
and  the  one  so  creating  the  impossibility  imposes 
upon  himself  the  liabilities  above  outlined  as  attend- 
ing a  prevention70.  As  where  the  vendee  of  personal 
property  agrees  to  measure  it  in  a  certain  way  be- 
fore payment,  and  by  his  act  makes  such  measure- 
ment impossible,  the  vendor  may  recover  the  contract 
price  of  whatever  amount  he  may  have  delivered71. 


67.  Adams  v.  Burbank,  103  Cal.  646 ;    37  Pac.  640. 
Newhal  Eng.  Co.  v.  Daly,  110  WIs.  256;    93  N.  W.  12. 

68.  Coon  v.  Water  Co..  152  Pa.  St.  644 ;    25  Atl.  505. 

69.  Wellston  Co.  v.  Franklin  Co.,  57  Oh.  St.  182;    48  N.  E.  888. 

70.  Blodgett  v.  Zinc  Co.,  120  Fed.  893. 

Brewer  v.  McCain,  21  Colo.  382;    41  Pac.  822. 
Christopher  Co.  v.  Yeager,  202  111.  486;    67  N.  E.  166. 
Shirk  v.  Lingeman,   26  Ind.  App.   630;    59  N.  E.   941. 
Loftus  v.  Riled,  83  la.  503 ;    50  N.  W.  17. 
Howard  v.  Mfg.  Co.,  162  N.  T.  347;    56  N.  E.  980. 
Vanderhoof  v.  Shell,  42  Or.  578;    72  Pac.  126. 
Bishop  v.  Averhill,  17  Wash.  209 ;    50  Pac.  1024. 
"1.     Harper  v.  Sterling,  84  111.  App.  62. 


CONTRACTS  44 

Sec.  29.  And  if  one  demands  performance  in  an 
illegal  way,  it  is  the  same,  and  bears  the  same  results 
as  making  it  impossible  to  comply  with  the  contract ; 
as  where  an  employer  demands  that  an  employe  work 
on  Sunday,  in  such  a  case  it  was  held  that  the  em- 
ploye could  quit  the  service  and  recover  for  his  labor 
already  performed72.  And  the  same  result  follows 
if  a  party  disables  himself  from  performing  his  part 
of  the  contract73. 

Sec.  30.  So,  if  a  party  refuses  to  treat  the  con- 
tract as  still  subsisting  and  binding  upon  him,  or  by 
his  acts  and  conduct  shows  that  he  has  abandoned 
it,  this,  in  legal  effect,  amounts  to  prevention  and 
•bears  with  it  the  same  rights  and  liabilities  as  if 
there  had  been  an  absolute  physical  prevention7*. 
Thus,  where  a  party  ordered  an  engine  to  be  made 
and  the  other  party  proceeded  to  make  it,  but  before 
delivery  received  a  countermand  of  the  order,  he  was 
held  to  have  been  prevented  from  performing  his 
part  of  the  contract75.  The  doctrine  was  first  pro- 
mulgated by  the  English  courts  in  the  case  of  Hochs- 
ter  v.  De  La  Tour70,  and  was  followed  in  the  case  of 
Frost  v.  Knight77,  which  have  ever  since  been  held 


72.  Hunt  v.  Adams,  81  Me.  356;    17  Atl.  298  ;    3  L.  R.  A.  608. 

73.  Simmons  v.  Pomeroy,  3  Mackey  213   (D.  C.) 
Numerous  authorities  cited  in   9   Cyc.   639. 

74.  Lake  Shore  Ry.  v.  Richards,   152  111.  59;    38  N.  B.  773;    38  L. 

R.  A.  1. 

Derby  v.  Johnson,   21  Vt.   21. 
Haines  v.  Tucker,  50  N.  H.  311. 
Smith  v.   Lewis,    24   Conn.    624 ;     63   A.   D.    180. 
Collins  v.  Delaporte,  115  Mass.  162. 
2  Smith's  Leading  Cases,  Am.  Ed.  22-23. 
Clark  v.  Marsiglia,  1  Denio,  43  A.  D.  670. 
75      Hosner  v.  Wilson,  7  Mich.  304;    74  A.  D.  718. 

76.  L.   J.  Q.  B.,   455. 

77.  L.  R.,  7  Ex.  111. 


44  THE  LAW  OF  WAIVES 

leading  cases  on  the  subject.  In  this  country  the 
doctrine  has  been  pretty  generally  adopted,  although 
a  contrary  rule  has  been  invoked  in  some  instances. 

It  has  been  applied  to  a  case  of  a  promise  of 
marriage  where  one  party  married  another  person 
before  time  for  performance  of  the  promise,  and  it 
was  held  that  he  thereby  prevented  performance  by 
the  other  party  to  the  contract,  in  legal  effect  waived 
it,  and  threw  wide  the  doors  of  the  courts  for  an  im- 
mediate action  for  the  breach78. 

Sec.  31.  But  it  is  said  that  the  refusal  to  per- 
form must  be  absolute  and  unequivocal79 ;  and  that  it 
must  be  acted  on  by  the  other  party,  for  mere  asser- 
tion that  a  party  will  be  unable  or  unwilling  to  per- 
form his  contract  is  not  sufficient  to  constitute  a 
waiver  of  performance  by  the  other  party80. 

D.  CONDITION  FOE  PAYMENT  FOR 
GOODS  ON  DELIVERY:— Sec.  32.  A  seller  of 
goods  to  be  paid  for  on  delivery  has  the  right  to  re- 
claim the  goods  if  the  condition  as  to  payment  be  not 
complied  with.  This  is  the  rule  whether  the  sale  be 
an  absolute  one  or  conditional  on  title  not  passing 
until  the  purchase  price  be  paid.  But  the  seller  is 
the  only  one  who  can  take  advantage  of  this  condi- 
tion, and  if  he  see  fit  to  deliver  the  goods  without  ex- 
acting payment  for  them  at  the  time,  the  sale  will 
be  a  complete  one,  and  the  buyer  cannot  complain 
that  the  condition  as  to  payment  has  not  been  com- 
plied with.  If,  however,  the  seller  make  an  absolute 


78.  Burtis  v.  Thompson,  42  N.  T.  246. 
See,    also:     32    la.    409. 

79.  Benjamin  on  Sales,  Art.  568. 
Smott  v.  U.  S.,  16  Wall.  36. 

80.  Benjamin  on  Sales,  Art.   568  and  cases  cited. 


CONTRACTS  45 

'delivery  of  the  goods  sold  without  exacting  a  com- 
pliance with  the  condition  as  to  payment  at  the  time 
of  delivery,  he  thereby  waives  the  breach  of  the  con- 
dition, the  title  to  the  property  passes  from  him,  and 
he  will  not  thereafter  be  entitled  nor  permitted  to 
reclaim  the  goods81.  It  is  the  seller's  duty  to  de- 
mand payment  in  some  appropriate  manner,  and  un- 
less he  do  this  his  delivery  will  be  held  a  waiver  of 
his  right  to  reclaim  the  goods  on  account  of  the  non- 
payment of  the  purchase  price  at  the  time  stipulated 
for82. 

Sec.  33.  But  waiver  here,  as  in  most  other 
cases,  is  a  question  of  intention,  and  there  may  be 
facts  and  circumstances  surrounding  and  attending 
the  delivery  of  goods  that  indicate  that  the  seller 
did  not  intend,  by  a  delivery  without  collecting  there- 
for, to  waive  this  condition,  in  which  event  a  waiver 
will  not  be  imputed  to  him,  and  he  may  reclaim  and 
retake  the  goods  so  delivered83.  This  is  especially 
the  case  where  there  is  either  an  express  or  implied 
understanding  that  the  title  to  the  goods  shall  not 
pass  from  the  vendor  until  the  payment  is  made. 


81.  Scharff  v.  M«yer,   133   Mo.  428;    34   S.  W.  858. 
Pinkham  v.  Appleton,  82  Me.  574;    20  Atl.  237. 

Witte  Mfg.  Co.  v.  Reilly,  11  N.  Dak.  203  ;    91  N.  W.  42. 
Kingsley  v.  McGrew,  48  Neb.  813 ;    67  N.  W.  787. 
Freeport  Stone  Co.  v.  Carey,  42  W.  Va.  276  ;    26  S.  E.  183. 
Foley  v.  Mason,  6  Md.  37. 

82.  Mackaness  v.  Long,  -85  Pa.  St.  158. 
Martin  v.  Wirts,  11  111.  App.  567. 
Freeman  v.  Nichols.   116  Mass.  309. 
Leavitt  v.  Rosenthal,  84  N.  Y.  Supp.  530. 

83.  Ewing  v.   Sylvester,   94   S.   W.    405;     (Tex.   Civ.  App.). 
Shines  v.  Stiner,  76  Ala.  458. 

Hodgson  v.  Barrett,  33  Oh.  St.  63. 

Hart  v.  Boston,  etc.  Ry.,  72  N.  H.  410;    56  Atl.  920. 

Stone  v.  Perry,   60  Me.   48. 

Dows  v.  Kidder,  84  N.  T.  121. 


46  THE  LAW  OF  WAIVER 

And  while  it  is  the  presumption  that  where  goods 
were  delivered  without  requiring  payment,  the  in- 
tention was  to  waive  the  condition  as  to  payments 
being  concurrent  with  delivery,  and  such  is  prima 
facie  proof  of  waiver,  still  the  presumption  may  be 
rebutted  by  showing  a  contrary  understanding84. 

®ec.  34.  But  even  where  the  seller  demands 
payment  at  the  time  of  the  delivery  of  the  goods,  he 
must  stand  by  his  demand  if  he  would  exercise  his 
right  to  reclaim  or  retake  the  goods.  For  if  he  vary 
from  the  terms  of  the  agreement  himself,  as  by  ex- 
tending credit  to  the  buyer,  taking  security  for  the 
purchase  price,  or  granting  an  additional  time  for 
payment  without  expressly  reserving  to  himself  title 
to  the  property,  he  will  be  held  to  have  waived  the 
condition  as  to  payment  and  cannot  later  retake  or 
reclaim  the  goods85.  And  his  diligence  in  taking 
measures  to  maintain  his  title  to  the  goods  must  be 
as  great  as  is  commensurate  with  the  facts  and  cir- 
cumstances or  the  nature  of  the  case  will  permit,  for 
his  laches,  or  failure  to  exercise  reasonable  prompti- 
tude in  reclaiming  the  goods  for  default  in  payment 
will  be  construed  as  a  waiver  of  his  right  to  reclaim 
them86. 


54.  Flshbeck  v.  Van  Dusen,  33  Minn.  Ill;    22  N.  W.  244. 
Anderson,  etc.  v.  Carr-Curran  Co.,  58  N.  J.  Eq.  59;    48  Atl.  428. 
Young  v.   Kans.  Mfg.  Co.,   23  Fla.   394;   2   So.   817. 

Osborn  v.  Gantz,  60  N.  Y.  540. 

55.  Thompson   v.   Wedge,    50   Wis.    642 ;    7    N.   W.    560. 
Mich.  Cent.  Ry.  v.  Phillips,  60  111.  190. 

*«.     Paulson  v.  Lyon,  26  Utah  438  ;    73  Pac.  510. 

Hirsch  v.  Leatherbee  Co.,  60  N.  J.  L.  509 ;    55  Atl.  645. 
Strother  v.  McMullen  Lbr.  Co.,  200  Mo.  647  ;    98  S.  W.  84. 
Drake  v.  Scott,  136  Ala.  261;    33  So.  873. 
Starnes  v.  Roberts,  128  Ga.  718;    58  S.  E.  348. 
Carter  v.  C,  of  W.  Co.,  73  Minn.  315;    76  N.  W.  56. 
Duagherty  v.  Fowler,  44  Kans.  628 ;    25  Pac.  40. 


CONTRACTS  47 

Sec.  35.  When,  however,  default  in  payment  is 
made  by  the  buyer,  the  seller  has  two  remedies,  ei- 
ther of  which  he  may  adopt :  He  may  disaffirm  the 
sale  and  retake  the  goods,  or  he  may  deliver  the 
goods  absolutely  and  rely  upon  the  personal  respon- 
sibility of  the  buyer.  But  by  electing  to  do  one  of 
the  two,  he  waives  the  right  to  follow  the  other  and 
must  abide  the  result  of  such  election  and  waiver87. 

2.     WAIVER  OF  TIME  FIXED  FOR  PERFORMANCE. 

Sec.  36.  In  cases  arising  on  agreements  that 
have  been  broken  by  one  party,  it  frequently  becomes 
necessary  to  determine  whether  by  its  terms  time 
has  been  made  one  of  the  important  elements  upon 
which  the  contract  depends ;  in  other  words,  whether 
time  is  of  the  essence  of  the  contract.  Upon  this 
point  liability  or  non-liability  often  hinges.  By  say- 
ing that  time  is  of  the  essence  of  the  contract  is 
meant  that  the  provision  as  to  time  in  which  an  obli- 
gation must  be  discharged  is  one  of  the  essential  con- 
ditions, and  one  of  the  requirements  of  which  are 
mandatory  and  to  be  disregarded  at  the  peril  of  him 
whose  duty  it  is  to  fulfill  those  requirements.  By 
the  overwhelming  weight  of  authority  the  general 
rule  is  held  to  be  that  time  is  of  the  essence  of  the 
contract  at  law  unless  it  appears  from  the  agreement 
that  the  parties  did  not  so  regard  it88.  But  in  equity, 

Wing  v.  Thompson,  78  Wis.  256 ;    47  N.  W.  606. 

Sprague  Co.  v.  Fuller,  158  Fed.  588. 
87.     Marston  v.   Baldwin,    17   Mass.    606. 

Heller  v.  Elliott,  44  N.  J.  L.  467. 

Fuller  v.  Eames,  108  Ala.  464 ;    19  So.  366. 

•8.     Garrison  v.  Cook,  96  Tex.  228;    72  S.  W.  64;    97  A    S    R    906- 
61  K  R,  A.   342. 

Underwood  v.  Wolf,  13  HI.  425;    23  N.  E.  598;    19  A.   S.  R.  40. 

Slater  v.  Emerson,  19  How.  224   (U.  S.). 

6hinn  v.  Roberts,  1  Spencer  (N.  J.)  435 ;    43  A.  D.  636. 


48  THE  LAW  OF  WAIVER 

on  the  contrary,  courts  do  not  ordinarily  regard  time 
as  of  the  essence  of  the  contract,  although  if  it  is  ex- 
pressly made  so  the  agreement  will  'be  carried  out89. 

Sec.  37.  It  has  been  said,  however,  that  ordi- 
narily time  is  not  of  the  essence  of  a  contract.  But 
it  is  when  it  appears  from  the  contract  that  at  the 
time  of  its  execution  the  parties  contemplated  that 
a  failure  of  the  promisor  to  perform  at 
the  time  stipulated  for  would  subject  the  promissor 
to  damages.  And  to  make  time  of  the  essence  of  the 
contract  it  must  appear  that  the  parties  made  it  es- 
sential to  the  contract  and  intended  it  so  to  be,  or, 
otherwise  said,  the  question  is  one  wholly  of  the  in- 
tention of  the  parties90,  and  the  words  of  the  con- 
tract must  clearly  show  this  intention91. 

In  treating  of  time,  the  law  of  waiver  has  to  do 
only  with  contracts  in  which  time  is  made  of  their 
essence ;  for  it  is  elementary  that  where  the  contract 
fixes  no  time  the  law  imposes  a  requirement  that  the 
performance  shall  be  within  a  reasonable  time92,  the 
reasonableness  of  which  depends  upon  the  facts  and 
circumstances  of  each  particular  case93. 

Sec.  38.  The  consequences  arising  from  a 
'breach  of  a  contract  where  time  is  of  the  essence, 
are  more  severe  than  where  it  is  not ;  for,  in  the 
former,  a  failure  to  perform  in  the  stipulated  time 


89.  3    Pomeroy's   Eq.   Jur.    Sec.    1408. 

Tate  v.  Pensacola  Co.,  37  Fla.  439 ;  20  So.  542  ;  53  A.  S.  R.  251. 
Sanford  v.  Weeks,  38  Kans.  319;  16  Pac.  465;  5  A.  S.  R.  748. 
Glock  v.  Howard  Co.,  123  Cal.  1;  55  Pac.  713;  69  A.  S.  R.  17. 

90.  Secomb  v.  Steel,  61  U.  S.  20  How.  94  ;    15  L.  Ed.  833. 
Wells  v.  Smith,  7  Paige  32;    31  A.  D.  274. 

Miller  v.  Cox.  96  Cal.  339;    31  Pac.  161. 

91.  Taylor  v.  Baldwin,  27  Ga.  438;    73  A.  D.  736. 

92.  9  Cyc.,  611  and  cases  cited  in  note  48. 
53.     9  Cyc.,   613,  note  65. 


CONTRACTS  49 

gives  the  party  not  in  default  the  option  to  consider 
himself  discharged  under  the  contract  and  to  recover 
his  damages  for  such  breach94 ;  tout  in  the  latter,  he 
cannot  consider  the  contract  as  discharged  but  must 
give  the  promissor  a  reasonable  time  in  which  to 
perform  95. 

Sec.  39.  But  even  if  time  is  of  the  essence  of 
the  contract,  and  one  party  has  bound  himself,  at 
all  hazards,  to  perform  by  a  certain  time,  this  is  an 
obligation  the  fulfillment  of  which  may  be  waived 
by  the  party  for  whose  benefit  it  was  made.  And  if, 
after  knowledge  that  the  obligation  has  not  been  dis- 
charged within  the  time  stipulated  for,  he  should 
commit  any  act  evidencing  a  disposition  inconsistent 
with  an  intention  to  insist  upon  the  provision,  he  will 
be  held  to  have  waived  the  default  in  performance. 
The  waiver  may  be  by  express  words,  it  may  be  by 
conduct  leading  the  opposite  party  to  believe  that 
the  provision  as  to  time  will  not  be  urged,  by  pro- 
ceeding under  the  contract  after  knowledge  of  the 
default,  by  otherwise  recognizing  the  contract  as  ex- 
isting after  breach  by  the  other  party  as  to  time,  or 
it  may  be  shown  by  a  vast  number  of  acts  which  an 
examination  of  the  cases  will  disclose. 

Sec.  40.  If  a  party  permit  work  to  continue 
under  a  contract  after  the  time-limit  has  expired, 
lie  waives  the  default  for  failure  to  complete  the 


»4.     Owen  v.  Henderson,  16  Wash.  39 ;    47  Pac.  215 ;    58  A.  S.  R.  17. 

Staley  v.  Thomas,   68  Md.   439  ;    13  Atl.  53. 

Sanborn  v.  Murphy,  86  Tex.  437  ;    25  S.  W.  610. 

Slater  v.  Emerson,   19  How.   224    (U.  S.). 
M.     2   Page,   Contracts,   Sec.    1159,   citing. 

Armstrong  v.  Breen,  101  la.  9;    69  N.  W.  1125. 

Usher  v.  Hollister,   58  Kans.   431;     49  Fac.   525. 


50  THE  LAW  OF  WAIVER 

work  in  time96.  It  is  a  waiver  of  a  breach  of  a  con- 
dition as  to  time  of  performance  for  an  owner  to 
make  part  payment  and  to  urge  a  builder  to  continue 
after  he  has  knowledge  that  the  builder  has  failed 
to  complete  his  contract  within  the  time  specified97. 
If  parties  to  a  contract  treat  it  as  in  force  after  the 
time  fixed  for  its  completion,  any  right  to  complain 
because  it  has  not  been  completed  in  time  is  waived98. 
A  party  notifying  the  other,  or  giving  him  to  under- 
stand that  the  provision  of  a  contract  as  to  the  time 
of  performance  would  not  be  insisted  upon,  cannot 
be  heard  to  say  that  the  contract  was  not  completed 
in  time99.  Continuing  work  under  a  contract  after 
certain  payments  are  due,  and  accepting  part  of 
such  sums  so  in  arrears  constitute  a  waiver  of  the 
condition  as  to  time  of  payment100.  If  payment  is 
due  at  a  certain  time  under  penalty  of  a  certain  for- 
feiture, the  forfeiture  is  waived  by  an  acceptance  of 
payment  after  such  time1.  And  a  vendor  has  the 
right  to  rescind  the  contract  on  account  of  non-pay- 
ment of  the  purchase-price  notes;  he  waives  the 
right,  however,  by  accepting  payment  after  matur- 
ity2. 

'Sec.  41.     A  waiver  of  the  right  to  insist  on  a 
forfeiture  in  a  contract  may  be  implied  from  the  con- 


96.     Sinclair  v.  Talmadge,  35  Barb.  602. 
Foster  v.  Worthlngton,  58  Atl.  65. 
»7.     Phil.  Const.  Co.  v.  Seymour,  91  U.  S.  646;  23  L.  Ed.  341. 

98.  Andrews  v.  Tucker,  127  Ala.  602 ;  29  So.  34. 

99.  Prentlss  v.  Lyons,  105  La.  382 ;  29  So.  944. 
100.     Bean  v.  Bunker,  68  Vt.  72 ;  33  Atl.  1068. 

1.     Stewart  v.  Cross,  66  Ala.  22. 

Stow  v.  Russell,  36  111.  18. 

Conkling  v.  King,  10  Barb.  372. 
t.     Phillips  v.  Hernden,  78  Tex.  378 ;  14  S.  W.  857 ;  22  A.  K.  R.  59. 

Moore  v.  Giesecke,  76  Tex.  548 ;  13  S.  W.  290. 


CONTRACTS  51 

duct  of  the  parties;  and  such  waiver  does  appear 
where  the  parties  treat  the  contract  as  still  subsist- 
ing after  its  time-limit  has  expired3.  Under  a  lease 
contract  to  ripen  into  a  sale  upon  payment  of  ten  an- 
nual payments  of  rent,  even  if  time  is  of  the  essence 
of  the  contract,  if  the  land  owner  received  payment 
after  the  time  stipulated  for,  he  waives  the  breach 
and  must  comply  with  his  part  of  the  contract4. 

Sec.  42.  It  is  the  duly  of  the  contractee  to  make 
complaint  at  the  time  of  the  breach  of  a  contract  that 
is  to  be  completed  by  a  certain  time,  and  to  permit 
the  contractor  to  proceed  and  finish  the  work  after 
such  breach  is  a  waiver  of  the  right  to  object  on  that 
ground5.  Accepting  work  after  the  stipulated  time 
for  completion  is  a  waiver  of  the  breach  as  to  time, 
and  the  measure  of  recovery  is  the  reasonable  worth 
of  the  work — this  being  the  contract  price — less  the 
actual  damages  to  the  owner  by  reason  of  the  delay6. 
In  a  contract  for  erecting  five  houses  by  October  1st, 
which  was  modified  in  September  by  reducing  the 
number  to  three,  by  acquiescing  in  the  work  and 
contemplating  that  it  might  take  till  Spring  to  com- 
plete it,  the  owner  shows  that  he  has  waived  the  right 
to  consider  time  of  the  essence  of  the  contract7. 
Where  the  time  of  performance  has  been  twice  ex- 
tended, and  the  parties  treat  the  contract  as  still  sub- 
sisting, the  original  time  limit  is  shown  to  have  been 


3.  Andrews  v.  Tucker,  127  Ala.  602 ;    29  So.  34. 
Lapsley  v.  Howard,  119  Mo.  489  ;    24   S.  W.  1020. 

4.  Davis  v.  Roberts,   89  Ala.  402;    8  So.   114;    18  A.  S.  R.  126. 
Lessel  v.  Goodman,  97  la.  68;    66  N.  W.  917;    59  A.  S.  R.  432. 
Mack  v.  Dailcy,  67  Vt.  90;    30  Atl.  686. 

6.     Jewell  v.    Schroeppel,   4   Cow.   567. 

6.  Orem  v.  Keetley,  85  Md.  337 ;  36  Atl.  1030. 

7.  Barnard  v.  M«L«od.  72  N.  W.  24  (Mich.). 


52  THE  LAW  OF  WAIVER 

waived8.  A  failure  to  accept  an  offer  of  arbitration 
provided  for  in  an  agreement  as  a  condition  prece- 
dent to  bringing  suit,  is  a  waiver  of  the  right  to  ar- 
bitrate9. Where  a  reasonable  time  is  given  a  party 
in  which  to  cut  and  remove  timber,  a  delay  of\  thir- 
teen years  waives  his  rights  under  the  contract10. 

A.  PERFORMANCE  PREVENTED  BY  THE 
PROMISEE :— Sec.  43.  If  the  contractor  is  pre- 
vented from  performing  his  contract  in  the  time 
stipulated  for  by  some  act  of  the  promisee,  such  pre- 
vention amounts  to  a  waiver  by  the  latter  of  the 
former 's  failure.  Thus,  where  a  vendor  has  told  his 
vendee  that  he  would  not  insist  upon  a  forfeiture  in 
a  contract  if  the  payments  were  not  made  in  time, 
such  was  held  a  waiver  of  default  in  the  payment11. 
If  one  party  hinder  the  other  in  his  performance,  it 
is  a  legal  excuse  for  not  performing  in  time12.  A 
contractor  is  not  liable  for  liquidated  damages  for 
failure  to  complete  a  building  in  time  if  the  owner 
was  in  any  manner  to  blame  for  the  delay13.  And 
this  is  true  of  contracts  other  than  for  building14. 

A  policy  of  insurance  provided  that  action 
thereon  should  be  commenced  within  a  year  from 
the  death  of  the  insured.  This  provision  was  waived 


8.  Moore's  Estate,   191  Pa.  St.   600;    43  Atl.   474. 

9.  Jones  v.  Brown,   171  Mass.  318;    50  N.  E.  648. 
Hutohlnson  v.  Insurance  Co.,  153  Mass.  143  ;  26  N.  E.  439. 

10.  Mfg.    Co.    v.    Hobbs,    128    N.    Car.    46;     28    S.    E.    26;     83    A*    S. 

R.  661. 

11.  Blair  u.  Blair,  48  la.  393. 

12.  Van  fiuren  v.  Dipg\s,  52  U.  S.  11;    11  How.  461;    13  L.  Ed.  771. 
18.     Weeks  v    Little,  89  N.  Y.  566. 

Lilly  v.  Person,  168  Pa.  St.  219 ;    32  Atl.  23. 
Tex.  Ry.  v.  Rust,  19  Fed.  239. 
14.     Vanderhool  v.  Shell,  42  Or.  578;    72  Pac.  126. 

Ashley  v.  Telephone  Co.,   25  Mont.   286;    64  Pac.   765. 


CONTRACTS  53 

where  longer  delay  was  caused  by  acts  and  repre- 
sentations of  the  insurer15.  Where  a  city  delays 
erecting  piers  on  which  a  contractor  is  to  erect  a 
'bridge,  there  can  be  no  reduction  of  the  contract 
price  for  delay  in  completing  the  bridge  even  though 
the  contract  provide  a  penalty  for  such  delay16. 

Sec.  44.  If  delay  in  carrying  out  a  contract  was 
caused  by  failure  of  the  contractee  in  carrying  out 
or  performing  his  part  of  it,  he  cannot  recover  dam- 
ages from  the  contractor  for  not  completing  in  the 
time  stipulated;  the  failure  of  the  contractee  being 
a  waiver  and  the  waiver  precluding  a  claim  for  dam- 
ages17. Where  a  party  recognizes  a  contract  as  still 
in  force  after  the  time  has  expired  for  its  comple- 
tion, or  directs  changes  making  a  longer  time  neces- 
sary, he  waives  any  breach  as  to  time18,  and  this  is 
true  whether  time  is  expressly  made  of  the  essence 
of  the  contract  or  not19. 

B.  TIME  HELD  NOT  WAIVED:— Sec.  45. 
But  the  question  of  whether  the  time  for  the  per- 
formance of  a  contract  has  been  waived  resolves  it- 
self into  a  determination  of  whether  the  party  in 
whose  favor  the  stipulation  was  made  intended,  to 
forego  the  benefits  conferred  upon  him  by  such  stip- 
ulation. He  need  not  expressly  manifest  such  in- 
tention. It  may  be,  and  frequently  is  the  case,  that 


15.  Hall  v.  Union  Cent.  Co.,  23  Wash.  610  ;    63  Pac.  505 ;    83  A.  S. 

R.    844. 

16.  King  Mfg.  Co.  v.  St.  Louis.  43  Fed.  768  ;    10  L.  R.  A.  826. 

17.  Williams  v.  Shields,  30  N.  Y.  S.  R.  556. 

18.  Amoskeag  Co.  v.  U.  S..  17  Wall.  592;    21  L.  Ed.  715. 
Pickney  v.  Dambmann,  72  Md.  173 ;    19  Atl.  450. 
Cornish  v.  Suydam,  99  Ala.  620;    13  So.  118. 

19.  Dannat  v.  Fuller,   120   N.  Y.   554;    24  N.  E.   815. 
Ward  v.  Mathews,  73  Cal.  13;    14  Pac.   604. 


54  THE  LAW  OF  WAIVER 

the  law  will  say  to  a  party:  "It  is  not  known  what 
your  secret  intention  may  have  been ;  but  your  con- 
duct has  led  your  adversary  to  believe  that  the  full 
letter  of  his  obligation  would  not  be  demanded  of 
him,  and  such  conduct  precludes  you  from  complain- 
ing of  his  failure  of  strict  performance."  But  it 
is  often  the  case  that  a  party  is  forced  to  pursue  a 
course  of  conduct  that  ordinarily  would  release  the 
other  party  from  a  literal  discharge  of  his  contract ; 
and  if  such  element  of  compulsion  exists,  he  will  not 
be  held  to  have  waived  a  breach  of  the  condition  in- 
serted for  his  benefit.  Thus,  the  acceptance  of 
buildings  by  the  defendant  as  they  had  been  com- 
pleted by  plaintiff  did  not  relieve  the  plaintiff  from 
his  obligation  to  have  them  completed  by  a  certain 
time20.  So,  receiving  machinery  after  the  time  speci- 
fied in  the  contract  is  not  a  waiver  of  defects  nor  of 
the  right  to  damages  for  its  non-delivery  in  time21. 
And  accepting  payment  of  over-due  installments, 
while  a  waiver  of  any  forfeiture  for  failure  to  pay 
them  in  time,  is  not  a  waiver  as  to  any  future  in- 
stallments22. 

3.     WAIVER  OF  TEINDER  OF  PERFORM AJNCE. 

A.  GENERAL  RULE'S :— <Sec.  46.  Tender  is 
an  offer  to  comply  with  the  terms  of  a  contract  or 
obligation.  It  may  be  to  pay  money  or  to  deliver 
other  articles,  or  to  perform  services.  Unless  there 
has  been  a  waiver,  the  debtor  must  comply  strictly 
with  the  terms  of  his  engagement  and  follow  to  the 


20.  Dermott  v.  Jones,  64  U.  S.  23  How.  220;    16  L.  Ed.  442. 

21.  Van  Winkle  Co.  v.  Wilklns,  81  Ga.  93  ;    7  S.  E.  644  ;    12  A.  S.  R. 

299. 

22.  Phelps  v.  111.  Cent.  Ry.,  11  Neb.  201. 


CONTRACTS  55 

letter  what  the  law  has  prescribed  as  the  rules  gov- 
erning the  making  of  a  tender.  The  tender  can  be 
made  only  by-  the  debtor  or  his  legal  representatives, 
and  only  to  the  creditor,  his  agent  or  legal  represen- 
tative. It  must  be  of  the  articles  provided  for  in  the 
agreement,  and  if  payment  in  money  is  called  for,  it 
must  'be  in  money  that  is  legal  tender  by  law.  And 
it  is  not  sufficient  to  be  able  and  willing  to  pay,  but 
the  money  must  l>e  actually  produced,  and  it  must  be 
a  sufficient  amount  to  fully  discharge  the  indebted- 
ness. If  more  than  enough  is  tendered,  it  must  be 
with  the  intention  that  the  creditor  shall  keep  all, 
and  it  must  not  be  in  such  condition  that  the  credi- 
tor is  required  to  make  change.  If  a  place  be  specified 
in  the  agreement,  tender  must  be  made  there;  and 
if  no  place  be  specified,  it  is  the  duty  of  the  debtor 
to  find  the  creditor  and  make  tender  to  him,  as  no 
duty  rests  upon  the  creditor  to  make  demand  upon 
the  debtor.  The  party  making  a  tender  may  couple 
with  it  any  condition  provided  for  by  law,  'but  none 
other,  and  if  he  attempts  to  do  so  the  tender  will  be 
insufficient. 

Sec.  47.  But  the  foregoing  duties  imposed  "by 
law  upon  a  debtor  may  be  waived  or  rendered  un- 
necessary by  some  act  of  the  creditor.  And  in  waiv- 
ing a  tender,  a  party  comes  more  nearly  to  doing  so 
without  intending  it  than  in  waiving  any  other  priv- 
ilege or  right  which  the  law  gives  him.  Like  the 
waiver  of  any  other  right,  that  of  tender  may  be  by 
express  avowal  or  by  conduct  leading  the  debtor  to 
believe  that  it  would  not  be  insisted  upon.  And  it  is 
often  waived  by  implication,  following  the  maxim, 
Expressio  unius  est  exclusio  alterius;  as  if  you  say 
to  me  that  you  have  come  to  pay  me  what  you  owe 


56  THE  LAW  OF  WAIVER 

me,  and  I  reply  that  it  will  be  unnecessary  to  show 
any  money  as  I  am  not  bound  by  the  contract ;  I  will 
not  later  be  heard  to  say  that  formalities  of  the  ten- 
der had  not  been  complied  with.  This  is  under  the 
principle  of  the  law  of  waiver  hereinbefore  dis- 
cussed, that  I  have,  in  a  legal  sense,  actually  prevent- 
ed you  from  performing  your  part  of  the  contract 
and  have,  therefore,  waived  or  dispensed  with  such 
performance.  Likewise,  refusal  to  accept  a  sum  be- 
cause insufficient  in  amount  waives  any  formalities 
in  the  tender28.  If  at  the  time  of  tender,  objection 
is  made  upon  one  ground,  any  other  objection  the 
party  might  have  made  will  be  considered  as 
waived24.  A  refusal  to  accept  a  check  for  the  only 
reason  that  it  is  insufficient  in  amount  is  a  waiver 
of  the  objection  that  the  offer  of  payment  was  not 
in  legal  tender25.  Or,  if  the  party  fail  to  object  that 
the  tender  was  not  made  in  time,  such  objection  will 
be  held  waived26.  And,  while  a  valid  tender  can  be 
made  only  in  legalized  currency,  this  requirement 
may  be  waived,  and  it  is  waived  if  objection  be 
placed  solely  on  other  grounds27.  A  tender  of  a  cer- 


23.  Whelan  v.  Reilley,  61  Mo.  565. 
Jennings  v.  Mendenhall,  7  Oh.  St.  257. 
Haskell  v.   Brewer,   11   Me.   258. 

24.  Moynahan  v.  Moore,  9  Mich.  9;    77  A.  D.  468. 
Carman  v.  Pultz,  21  N.  Y.  547. 
Bradshaw  v.  Davis,  12  Tex.  336. 

Nelson  v.  Robson,  17  Minn.  284. 
Ricker  v.   Blanchard,  45  N.  H.  39. 
Keller  v.  Fisher,  7  Ind.  718. 

25.  Larson  v.  Breene,  12  Colo.  480;    21  Pac.  498. 

26.  Adams  v.  Helms,   55  Mb.  468. 

27.  Ward  v.    Smith,   7   Wall.    447    (U.   S.). 
Williams  v.  Rorer,  7  Mo.  556. 
Fosdick  v.  Van  Husom,  21  Mich.  567. 
Wheeler  v.  Knaggs,    8   Oh.   169. 
Lowell  v.  Henry,  6  Ala.  226. 


CONTRACTS  57 

tain  sum  was  made  by  check;  the  payee  refused  to 
receive  it  on  the  sole  ground  that  the  contract  had 
been  ended;  he  thereby  precluded  himself  from  ob- 
jecting to  the  medium  of  tender28. 

Sec.  48.  If  no  objection  be  made  as  to  the  terms 
of  an  instrument  when  presented  defects  therein  can- 
not afterward  be  insisted  upon29.  In  fact,  if  there  he 
any  language  or  conduct  indicating  that  payment  or 
performance  will  be  refused  if  offered,  such  offer 
need  not  be  made,  for  the  law  never  requires  one  to 
do  a  vain  thing30.  So,  the  refusal  of  an  offer  of  pay- 
ment dispenses  with  any  further  tender31.  And 
where  a  payee  declares  that  he  will  not  receive  mon- 
ey if  produced,  or  uses  equivalent  language,  the  pro- 
duction of  the  money  is  thereby  waived32.  In  a  con- 
tract for  the  sale  of  a  boat  it  was  held  unnecessary 
for  a  party  to  tender  a  conveyance  stipulated  for 
when  the  buyer  had  signified  his  unwillingness  to 
accept  it33.  Where  the  debtor  holds  the  money  in 
his  hands  and  tells  the  creditor  that  he  has  come  to 
pay,  'but  the  latter  replies  that  it  would  be  altogether 
unnecessary  to  produce  the  money,  there  need  be  no 


28.  McGrath  v.  Gegner,  79  Md.  331 ;    26  Atl.  502  ;    39  A.  S.  R.  415. 

29.  Gilbert  v.  Mosher,  11  la.  498. 

30.  Sonia  Co.  v.  Red  River,  106  La.  42;    30  So.  303  ;    87  A.  S.  R.  293. 
Chinn  v.  Bretcher,  42  Kans.  316 ;    22  Pac.  426. 

31.  O'Conor  v.  Morse,  112  Cal.  31;    44  Pac.  305;    33  A.  S.  R.  155. 
McCally  v.  Otey,  99  Ala.  584;    12  So.  406;    42  A.  S.  R.  87. 

32.  Berthold   v.   Reyburn,    61    Mo.    595. 

Stephenson  v.  Kilpatrick,  166  Mo.  262  ;    65  S.  W.  773. 

Guthman  v.  Kearn,   8  Neb.   507. 

Ashburn  v.  Poulter,   35   Conn.    553. 

Berry  v.  Nail,  54  Ala.  451. 

Hall  v.  Ins.  Co.,  67  Conn.  105;    17  Atl.  356. 

Rogers  v.  Tindall,  99  Tenn.  356 ;    42  S.  W.  86. 

Hazard  v.  Loring,  10  Gush.  267. 

33.  Lynch  v.  Postlethwaite,  7  Martin  (La.)   69;    12  A.  D.  495. 


58  THE  LAW  OF  WAIVER 

further  formalities  of  the  offer  to  pay34.  A  release 
from  damages  for  personal  injuries  was  alleged  to 
have  been  obtained  by  fraud;  no  objection,  by  plead- 
ing or  otherwise,  was  made  to  plaintiff's  case  for  his 
failure  to  tender  a  return  of  the  fruits  of  the  release, 
and  the  validity  of  the  release  was  insisted  upon ;  de- 
fendant was  held  to  have  waived  the  necessity  of  a 
tender35. 

Sec.  49.  The  foregoing  cases  involved  a  waiver 
at  the  time  of  tender.  But  it  is  not  absolutely  neces- 
sary that  the  waiver  should  occur  at  the  time  of  ten- 
der in  order  for  it  to  be  valid.  It  may  be  before  or 
after  as  well  as  at  the  time  of  tender ;  as  where  a 
creditor  announces  in  advance  that  a  tender  will  not 
be  accepted,  it  is  thereby  waived36.  If  one  party  to 
a  contract  notifies  the  other  that  he  will  no  longer 
be  bound  by  it,  he  waives  the  making  of  a  tender  of 
any  sum  due  him  under  the  contract37.  In  a  suit  for 
specific  performance,  where  the  defendant  insists 
that  he  is  not  bound,  no  tender  of  the  purchase 
price  need  be  made  before  bringing  suit38. 

•Sec.  50.  And,  again,  some  act  of  the  creditor 
may  prevent  an  actual  tender ;  as  in  a  case  where  a 
party  should  have  delivered  a  deed  on  a  certain  day, 


34.  Westmoreland    v.    De   Witt,    130    Pa.    St.    235;     18    Atl.    724;     5 

L.  R.  A.  731. 
Thome  v.  Mosher,   20  N.  J.  Eq.   257. 

35.  Girard    v.    St.    Louis    Car    Co.,    123    Mo.    358;     27    S.    W.    648; 

45  A.  S.  R.  556;  25  L.  R.  A.  514. 

36.  Duffy  v.  Patton,   74  Me.  396. 

Hampton  v.   Speckenagle,   1  Ad.  704    (Penn.). 
Dorsey  v.  Barbee,  12  A.  D.  296   (Ky.). 
Hoyt  v.  Sprague,  61  Barb.  497. 

37.  McPherson    v.    Fargo,    10    S.    Dak.    611;     74    N.    W.    1057;     66 

A.  S.  R.  723. 

Potter  v.  Taggart,  54  Wis.  401;    11  N.  W.  678. 
38.     Wright  v.  Young,  6  Wis.  127;  70  A.  D.  453. 


CONTRACTS  59 

and  the  party  to  have  received  it  willfully  evaded 
him  so  that  it  could  not  be  tendered,  the  facts  were 
held  equivalent  to  a  tender39.  And  where  one  party 
is  at  the  proper  place  at  the  proper  time  to  make 
an  offer  of  performance  and  the  other  party  inten- 
tionally evades  tender,  it  is  thereby  waived40.  And 
a  waiver  also  occurs  where  the  creditor  refuses  to 
stay  in  the  room  long  enough  for  the  money  to  be 
counted  out  to  him41.  And  a  waiver  may  occur  after 
the  time  when  the  tender  should  have  -been  made. 
Thus,  a  tender  of  cattle  under  a  contract  within  the 
specified  time  is  waived  by  an  acceptance  of  them 
afterward42. 

B.  ACTS  HEO)  NOT  A  WAIVER:— Sec.  51. 
But  the  bare  refusal  to  receive  the  amount  due  under 
the  contract,  coupled  with  a  demand  for  a  larger 
amount,  have  been  held  not  to  amount  to  a  waiver 
of  a  tender  of  proper  performance43.  And  where 
one  refers  another  offering  him  a  tender  to  his  at- 
torney, but  does  not  refuse  to  accept  and  makes  no 
objection,  and  does  not  intimate  that  the  tender 
would  not  be  required,  such  facts  were  held  not  to 
amount  to  a  waiver44.  A  refusal  of  a  tender,  but 
accompanied  by  a  demand  for  the  production  of  the 
money  does  not  excuse  a  tender45.  And  a  tender  is 
not  waived  where  there  is  merely  an  uncommuni- 


39.  Borden  v.  Borden,  6  Ma.ss.  67;    4  A.  D.  32. 

40.  Noyes  v.  Clark,  7  Paige  179  ;    32  A.  D.  620. 
Sharp  v.  Todd,  38  N.  J.  Eq.  329. 
Southworth  v.  Smith,  7  Cush.  391. 
Gilmore  v.  Holt,  4  Pick.  258. 

41.  Schayer  v.  Ix>an  Co.,  166  Mass.  322;    39  N.  E.  1110. 

42.  Emery  v.   Langley,   1  Idaho   694. 

43.  Dunham  v.  Jackson,  6  Wend.  22. 

44.  Strong  v.  Blake,  46  Barb.  227. 

45.  Neiderhauser  v.  Ry.  Co.,  131  Mich.  550;  91  N.  W.  1028. 


60  THE  LAW  OF  WAIVER 

cated  intention  of  the  creditor  not  to  accept  the 
offer46. 

4.     WAIVER  OF  FORFEITURES. 

A.     GENERAL  RULES :— <Sec.  52.     The  law 

winks  at  forfeitures;  equity  closes  its  eyes  upon 
them.  And  the  disfavor  in  which  they  are  held  is 
so  great  that  if,  by  any  construction,  they  can  'be 
denied  without  making  new  contracts  for  parties, 
that  course  will  usually  be  pursued.  A  forfeiture  is 
a  financial  punishment  provided  for  the  benefit  of 
one  party  at  the  expense  of  the  other  for  his  derelic- 
tion in  the  performance  of  some  duty  enjoined  upon 
him.  And  while  the  one  upon  whom  such  obligation 
rests  must  see  to  it  that  the  conditions  he  has  agreed 
to  perform  are  complied  with,  if  he  would  escape  the 
penalty  provided  for  his  failure  to  so  perform,  it  is 
not  in  every  instance  of  his  default  that  his  adver- 
sary shall  be  permitted  to  invoke  the  forfeiture.  For 
the  latter  may  have  so  conducted  himself  as  to  be 
the  direct  cause  of  a  contractor's  dereliction,  and  in 
such  event  he  cannot  take  advantage  of  a  state  of 
facts  that  his  own  conduct  has  induced.  Tf  it  is  the 
fault  of  the  party  for  whose  benefit  a  forfeiture  has 
been  provided  that  some  condition  has  not  been  com- 
plied with,  such  party  will  not  be  permitted  to  profit 
by  his  own  wrong,  and  the  forfeiture  will  be  denied 
him47.  This  is  only  another  way  of  saying  that  a 
party  may  waive  the  benefit  of  a  forfeiture  provid- 
ed for  his  advantage.  And,  like  other  waivers,  those 
in  this  connection  may  occur  by  expression  of  the 


46.  Bluntzer  v.  Dewees,  79  Tex.  272  ;    15  S.  W.  29. 

47.  Dement  v.  Bonham,  26  111.  158. 


CONTKACTS  61 

party  himself,  by  acts  signifying  an  intention  to 
forego  the  benefit  of  the  provision,  or  by  conduct 
misleading  to  the  other  party  and  inducing  an  hon- 
est belief  in  the  existence  of  such  intent.  And,  as 
forfeitures  are  not  looked  upon  with  favor,  if  once 
waived  they  will  not  be  assisted  by  the  courts. 

Sec.  53.  Slight  acts  are  sufficient  to  show  a 
waiver,  as,  for  instance,  a  landlord's  acceptance  of 
rent  after  his  right  to  a  forfeiture  for  non-payment 
has  accrued48.  And  where  a  railroad  company  in- 
duced a  shipper  to  go  to  the  expense  and  trouble  of 
making  out  a  claim  for  damages  as  suggested  by 
its  agent,  it  was  held  to  have  waived  the  right  to  a 
forfeiture  inserted  in  the  contract  for  its  benefit49. 
A  forfeiture  will  be  deemed  waived  by  any  agree- 
ment, declaration  or  course  of  conduct  on  the  part 
of  him  who  is  benefitted  by  such  forfeiture  which 
leads  the  other  party  honestly  to  believe  that  by  con- 
forming thereto  the  forfeiture  will  not  be  incurred. 

Sec.  54.  A  party  may  cause  the  inference  of  a 
waiver  of  his  right  to  a  forfeiture  by  his  silence 
when  it  is  his  duty  to  speak;  as  where  a  lessee  in 
arrears  for  rent  told  his  landlord  that  he  would  cred- 
it the  amount  of  the  rent  on  a  note  owed  him  by  the 
landlord,  but  the  latter  made  no  reply,  any  right  to 
a  forfeiture  existing  at  that  time  was  waived50.  And 
a  right  to  a  forfeiture  may  be  waived  in  advance  of 
its  accrual;  for  if  a  party  should  state  to  his  con- 


48.  Garnhart  v.  Plnney,  4  Mo.  App.  449  ;    93  A.  D.  303. 

Williams  v.   Vanderbilt.    145   111.   238;     34   N.   E.    476;     36   A.    S. 
R.  486. 

49.  Hudson    v.    No.    Pac..    92    la.    231;     60    N.    W.    608;     54    A.    S. 

R.  550. 
60.     Johnson  v    Douglas,  73  Mo.  168. 


62  THE  LAW  OF  WAIVES 

tractor  that  a  forfeiture  provided  for  the  former's 
benefit  would  not  be  insisted  upon,  he  would  not  later 
be  heard  to  demand  the  forfeiture,  especially  if  the 
statement  had  been  acted  upon  by  the  other  party51. 

S'ec.  55.  A  waiver  may  also  be  shown  where  a 
party  entitled  to  a  forfeiture  proceeds  under  the 
contract  after  the  accrual  of  such  right.  Thus,  a 
plaintiff  had  conveyed  certain  property  to  the  de- 
fendant in  consideration  of  his  future  support.  He 
left  the  premises  for  eleven  weeks  because  of  al- 
leged breach  of  condition,  but  afterward  returned 
and  stayed  a  year  and  a  half.  By  proceeding  under 
the  terms  of  the  conveyance  and  accepting  further 
support,  it  was  held  that  he  waived  his  claim  to  a 
forfeiture  for  any  breach  prior  to  his  departure52. 
And  a  party  entitled  to  a  forfeiture  must  proceed 
to  assert  his  right,  for  usually  delay  or  other  slight 
circumstances  will  be  treated  as  a  waiver53.  The 
following  pertinent  quotation  is  from  an  insurance 
case:  "It  may  be  broadly  asserted  that  if,  in  any 
negotiations  or  transaction  with  the  insured,  after  a 
knowledge  of  the  forfeiture,  it  recognizes  the  con- 
tinued validity  of  the  policy,  or  does  acts  based 
thereon,  or  requires  the  assured,  by  virtue  thereof, 
to  do  some  act  or  incur  some  trouble  or  expense,  the 
forfeiture  is,  as  a  matter  of  law,  waived. '  '54 

B.  IN  DEEDS  AND  LAND  CONTRACTS  :— 
Sec.  56.  Courts  are  frequently  called  upon  to  con- 
strue and  enforce  contracts  for  the  sale  of  land  in 


51.     Blair  v.   Blair,   48   la.   393. 
62.     Dunklee  v.  Hooper,  37  111.  225. 
S3.     Allen  v.  Dent,  4  Lea  676. 

Catlin  v.  Wright.   13   Neb.   5."  9:    14   N.  W.   530. 
64.     Titus  v.  Glens  Falls  Ins.  Co.,  81  N.  Y.  410. 


CONTRACTS  63 

which  a  forfeiture  is  provided  for  the  non  perform- 
ance of  certain  conditions.  It  is  perfectly  legitimate 
and  proper  for  parties  to  provide  for  such  penalties, 
and,  in  the  absence  of  fraud,  circumvention,  waiver 
or  some  other  act  affording  a  legal  excuse  for  the 
breach  of  the  condition,  courts  will  uphold  and  en- 
force such  terms  as  the  parties  have  agreed  upon. 
But  here,  as  in  the  case  of  any  other  right,  a  forfeit- 
ure may  be  waived  by  the  party  entitled  to  it,  and 
the  general  rules  hereinbefore  announced  apply  in 
this  class  of  contracts.  Accordingly,  it  has  been 
held  that  a  party  waives  his  right  to  a  forfeiture 
for  a  default  of  his  vendee  if  he  takes  no  steps  to- 
ward a  rescission  till  the  time  when  the  contract  was 
to  have  been  completed55.  And  in  a  case  where  a 
payee  agreed  to  an  extension  of  time  for  payment, 
he  was  held  to  have  precluded  himself  from  insisting 
upon  a  forfeiture  for  failure  of  payment  at  maturity 
unless  'be  had  first  demanded  payment56.  The  right 
to  declare  a  forfeiture  is  waived  where  a  vendor  con- 
tinues to  act  under  the  contract  after  default,  even 
where  time  is  of  the  essence  of  the  contract57.  And 
if,  after  the  accrual  of  hie  right  to  a  forfeiture,  he 
brings  an  action  asking  for  the  specific  performance 
of  the  contract,  he  thereby  loses  his  right  to  the  for- 
feiture58. A  forfeiture  provided  in  a  land-sale  con- 
tract on  default  in  payment  of  the  purchase  price  is 
waived  by  the  subsequent  execution  of  a  deed  to  the 


65.  Stcele  v.  Branch,  40  Cal.  13. 
56.  Thayer  v.  Meeker,  86  111.  470. 
87.  Baker  v.  Bishop,  etc.,  45  111.  264. 

Smith  v.  Mohn,  87  Cal.  183  ;  25  Pae.  644. 
68.     Daniels  v.  McCagg,  32  111.  429. 


64  THE  LAW  OF  WAIVER 

purchaser  or  his  assignee  by  the  original  vendor59. 
If  a  vendee  is  to  pay  the  purchase  price  by  a  time 
certain  but  makes  default,  a  later  acceptance  of  pay- 
ment by  the  vendor  is  a  waiver  of  his  right  to  a  for- 
feiture60. 

Sec.  57.  Circumstances  and  the  acts  of  tb*> 
party  for  whose  benefit  a  forfeiture  has  been  pro- 
vided may  be  sufficient  from  which  to  imply  that  his 
right  to  the  forfeiture  has  been  waived.  Thus,  one 
holding  several  notes  for  the  purchase  price  of  land, 
who  is  entitled  to  a  forfeiture  for  the  non-payment 
of  any  one  of  them,  waives  his  right  to  such  forfeit- 
ure if,  after  default,  he  transfers  any  of  the  subse- 
quent notes  to  a  bona  fide  purchaser61.  Even  if  time 
is  of  the  essence  of  a  contract  for  the  sale  of  land 
and  there  has  been  quite  a  delay  in  offering  payment 
after  the  right  to  a  forfeiture  accrues,  a  vendor  who 
accounts  with  his  vendee  and  allows  the  latter  to 
make  expensive  improvements  and  pay  taxes  is  pre- 
cluded from  declaring  a  forfeiture  after  such  offer 
of  payment62.  Delay  in  giving  notice  after  default 
will  not,  of  itself,  constitute  a  waiver  of  a  right  to  a 
forfeiture,  nor  will  lapse  of  time  after  default  alone 
be  sufficient63. 

Sec.  58.  Conditions  subsequent  are  frequently 
inserted  in  deeds,  and  a  forfeiture  of  the  estate  or 
some  other  forfeiture  provided  in  case  of  a  breach 


69.     Alexander   v.   Jackson,    92    Cal.    514;     28    Pa«.    693;     27   A.   S.   R. 

158. 
80.     Stow  v.  Russell,  36  111.  18. 

Grigg  v.  Landls,  21  N.  J.  Eq.  494. 

Hutchings  v.  Hunger,  41  N.  T.  158. 
€1.     Iglehart  v.  Gibson.  56  111.  81. 
«2.     Allen  v.  Woodrull,  96  111.  11. 
63.     Kerns  v.  McKean,  65  Cal.  411;    4  Pac.  404. 


CONTRACTS  65 

of  such  a  condition.  A  breach  of  thess  conditions, 
also,  may  be  waived  by  the  party  entitled  to  their 
performance.  A  party  does  waive  his  right  to  such 
a  forfeiture  by  treating  the  contract  and  the  condi- 
tion as  still  subsisting  after  a  breach64.  And  the 
condition  once  dispensed  with,  or  its  breach  waived, 
is  gone  forever  and  cannot  later  be  insisted  upon65. 
Where  there"  is  a  condition  subsequent  in  a  deed,  the 
grantor  may  waive  a  right  to  a  forfeiture  and  he  will 
be  held  to  have  done  so  unless  he  enters  for  condition 
broken  or  brings  ejectment66. 

Sec.  59.  Where  a  grantee  agreed,  under  the 
penalty  of  a  forfeiture  of  the  estate,  to  build  a  house 
in  a  certain  time,  but  failed  to  do  so,  the  grantor  still 
'being  in  possession,  no  positive  act  was  necessary  on 
the  part  of  the  latter  in  order  to  claim  the  forfeiture, 
and  he  did  not  waive  his  right  thereto  by  failing  to 
do  some  formal  act67.  "The  right  of  entry  for  the 
breach  of  a  condition  subsequent  may  be  waived  or 
lost  by  laches.  Therefore,  where  land  was  granted 
on  the  condition  that  it  should  be  used  as  a  burying 
ground,  and  that  the  grantees  should  build  and  keep 
a  good  fence  around  it,  and  it  was  used  as  a  burying 
ground  for  more  than  forty-five  years,  hut  no  fence 
was  ever  erected  around  it,  and  no  eomplaint  was 
ever  made  of  the  absence  of  such  fence,  it  is  then 
too  late  for  the  successor  in  interest  of  the  grantor 


14.     Hubbard  v.  Hubbard,  97  Mass.  188. 
«5.     Sharon  Co.  v.  Erie,  41  Pa.  St.  341. 

Barrle  v.  Smith,  47  Mich.  130 ;    10  N.  W.  168. 

Dakln  v.  Williams,  22  Wend.  201. 
66.     Ellis  v.  Kyger,  90  Mo.  606. 
«7.     O'Brien  v.  Wagner,  94  Mo.  93  ;    4  A.  S.  R.  360. 


66  THE  LAW  OF  WAIVER 

to  enter  for  condition  broken"68.  Where  a  deed  con- 
tained a  provision  that  there  should  'be  no  saloon 
on  the  premises  under  penalty  of  forfeiture  of  the 
estate,  the  grantor  was  held  to  have  waived  such  re- 
striction by  subsequently  conveying  an  adjoining 
tract  without  such  condition69.  If  a  conveyance  con- 
tain a  prohibition  against  the  sale  of  liquor  on  the 
premises,  it  is  no  waiver  of  the  condition  if  a  single 
glass  of  liquor  is  sold  thereon  in  the  presence  of  the 
grantor70. 

C.  IN  LEASES :— Sec.  60.  Waivers  of  rights 
to  forfeitures  occur  perhaps  more  frequently  in 
agreements  between  landlord  and  tenant  than  in  any 
other  species  of  contracts  unless  it  be  those  of  in- 
surance. Most  leases  provide  some  condition  sub- 
sequent, such  as  payment  of  rent  by  a  certain  time, 
a  prohibition  against  sub-letting,  or  for  making  cer- 
tain repairs  and  improvements,  which  the  tenant 
must  comply  with  upon  pain  of  a  forfeiture  for  his 
failure.  But  it  is  the  general  rule  that ' '  any  act  done 
by  the  landlord  knowing  of  a  cause  of  forfeiture  by 
his  tenant,  affirming  the  existence  of  the  lease,  and 
recognizing  the  lessee  as  his  tenant,  is  a  waiver  of 
such  forfeiture"71.  In  order  for  a  landlord  to  en- 
force a  forfeiture  provided  for  in  a  lease  he  must 
take  active  measures  upon  breach  of  the  conditions. 
He  must  do  some  unequivocal  act  that  would  signify 
to  the  lessee  in  a  decisive  manner  his  election  to  de- 
termine the  lease72.  But  unless  the  facts  are  such 


68.  Scovill  v.  McMahon,  62  Conn.  378;    26  Atl.  479;    36  A.  S.  R.  350. 

69.  Jenks  v.  Palowski,  98  Mich.   110;    56   N.  W.  1105;    39  A.  S.  R. 

522. 

70.  Plumb  v.  Tubbs,  41  N.  Y.  442. 

71.  Webster  v.  Nichols,  104  111.  160. 

72.  Read  v.  Tuttle,  35  Conn.  25  ;    95  A.  D.  216. 
Bowman  v.  Foot,  29  Conn.  331. 


CONTRACTS  67 

as  to  show  the  creation  of  a  new  term,  merely  per- 
mitting the  tenant  to  hold  over  without  notice  to 
quit  is  not  a  waiver  of  a  forfeiture  provided  for  in 
the  lease  under  which  the  tenant  entered73. 

Sec.  61.  The  provision  in  a  lease  for  a  forfeit- 
ure is  for  the  benefit  of  the  lessor,  and  a  breach  of 
the  condition  does  not  ipso  facto  render  the  lease 
void,  but  voidable  at  the  option  of  the  lessor,  which 
option  must  be  exercised  at  once  if  at  all.  "Where  a 
lease  is  thus  voidable,  the  landlord's  option  to  avoid 
it  should  be  exercised  at  the  proper  time  and 
place"74.  "By  the  terms  of  the  lease,  the  term  is 
not  void  by  reason  of  a  violation  of  the  covenants 
ipso  facto,  but  is  voidable  only  at  the  option  of  the 
lessor.  He  may,  or  not,  insist  upon  a  forfeiture,  and 
until  he  exercises  the  option  reserved  to  declare  or 
claim  a  forfeiture,  the  term  continues.  It  is  by  his 
own  act,  and  not  that  of  the  lessee,  that  the  lease  is 
terminated,  and  it  is,  of  course,  by  his  own  omission 
to  insist  upon  a  forfeiture  immediately  upon  viola- 
tion of  the  covenant,  or  as  soon  as  he  has  knowledge 
of  it,  that  he  is  placed  in  a  situation  in  which  he  may 
waive  a  forfeiture"75.  And  if  the  landlord,  having 
a  right  to  declare  a  forfeiture  on  account  of  some 
'breach  of  condition  by  his  lessee,  chooses  to  waive 
the  breach  and  continue  the  lease,  the  lessee  cannot 
set  up  his  own  default  as  a  cause  of  forfeiture,  nor 
urge  it  as  a  defense  to  an  action  to  affirm  the  lease76. 


73.  Calderwood  v.  Brooks,  28  Cal.  151. 

74.  Bowman  v.  Foot,  29  Conn.  331. 

75.  Walker  v.  Engle,  30  Mo.  131. 

76.  Clark  v.  Jones,  1  Denio  516 ;    43  A.  D.  706. 
Wills  v.  Mfg.  Co.,  130  Pa.  St.  222  ;    18  Atl.  721. 

Ray  v.  Gas  Co.,  138  Pa.  St.  576 ;    20  Atl.  1065 ;    21  A.  S.  R.  922. 

Bowyer  v.  Seymour,  13  W.  Va.  12. 

Smith  v.  Miller,  49  N.  J.  L.  521 ;    13  Atl.  39. 


68  THE  LAW  OF  WAIVER 

The  granting  of  a  lease  of  premises  to  a  second 
lessee  after  default  in  performance  of  conditions  by 
the  first  lessee  is  not  a  waiver  of  a  forfeiture  for 
such  default,  but,  on  the  other  hand,  is  a  manifesta- 
tion of  an  intention  to  insist  upon  the  forfeiture77. 

Sec.  62.  Probably  the  most  frequent  occurrence 
of  the  waiver  of  forfeiture  by  a  landlord  is  the  ac- 
ceptance by  him  of  payment  of  rent  after  the  ac- 
crual of  his  right  to  declare  a  forfeiture.  And  it  is  the 
general  rule  that  if  a  landlord,  after  condition  broken 
by  his  tenant,  accept  payment  of  rent  after  knowl- 
edge of  such  breach  has  been  brought  home  to  him,  he 
waives  the  right  to  a  forfeiture78.  And  the  accept- 
ance by  the  landlord  of  rent  accruing  after  breach  of 
a  condition  is  a  waiver  of  his  right  to  a  forfeiture 
on  account  of  such  breach79.  Eeceiving  or  distrain- 
ing for  rent  after  the  accrual  of  the  right  to  a  for- 
feiture, with  knowledge  of  such  right,  is  a  waiver  of 
it80.  Eeceiving  payment  of  rent  in  advance,  know- 
ing of  a  breach  of  condition  by  the  tenant  sufficient 
to  work  a  forfeiture,  is  a  waiver  of  all  past  breaches 
and  operates  to  extend  the  lease  for  the  period  paid 
for81.  If  a  delay  in  paying  rent  has  been  acquiesced 


77.  Guffy  v.  Huklll,  34  W.  Va.  49;    11  S.  E.  754;    26  A.  S.  R.  901. 
All.  Oil  Co.  v.  Brad.  Oil  Co.,  21  Hun  26;    86  N.  Y.  638. 
Munroe  v.  Armstrong,  96  Pa.  St.  307. 

78.  Little  Rock  Co.  v.  Shall,  59  Ark.  405  ;    27  S.  W.  562. 
Dahm  v.  Barlow,  93  Ala.  120 ;    9  So.  598. 
McGlynn  v.  Moore,  25  Cal.  384. 

79.  Gomber  v.  Hackett,  6  Wis.  323  ;    70  A.  D.  467,  citing  2  Platt  on 

Leases,  468. 

Taylor,  Landlord  &  Tenant,  Sec.  497. 
Jackson  v.  Allen,   3  Cow.  229. 
Bleecher  v.  Smith,   13  Wend.  530. 
Collins  v.  Canty,  6  Cush.   415. 

80.  Camp  v.  Scott,  47  Conn.  370. 

81.  Brooks  v.  Rogers,  99  Ala.  433  ;    12  So.  61. 


CONTRACTS  69 

in  by  the  landlord,  and  the  tenant  has  thereby  been 
induced  to  beli'eve  that  forfeiture  for  non-payment 
in  time  would  not  be  insisted  upon,  equity  will  not 
enforce  the  forfeiture82. 

Sec.  63.  But  a  right  to  a  forfeiture  is  not 
waived  by  the  landlord's  receiving  rent  from  an  as- 
signee in  bankruptcy,  the  assignment  being  a  breach 
of  the  condition  of  the  lease83.  If  both  parties  have 
habitually  disregarded  the  provisions  of  a  lease  as 
to  payment  of  rent,  default  in  such  payment  cannot 
be  urged  as  a  forfeiture84.  But  a  lessor  does  not 
waive  his  right  to  a  forfeiture  by  accepting  payment 
after  notice  to  quit  and  applying  it  on  installments 
due  prior  to  the  one  for  the  payment  of  which  the 
forfeiture  is  claimed85.  And  conditions  of  a  con- 
tinuing nature  are  waived  only  as  to  the  past  breach- 
es where  the  landlord  accepts  payment  of  rent,  and 
he  does  not  waive  his  right  to  a  forfeiture  for  future 
breaches86,  But  it  has  been  held  that  a  right  of  re- 
entry and  forfeiture  must  be  exercised  during  the 
term,  and  that  failure  to  so  exercise  it  is  a  waiver 
of  it87.  If,  after  non-payment  of  taxes,  that  being 
imposed  upon  the  tenant  by  the  terms  of  the  lease, 
the  landlord  accept  payment  of  the  rent,  he  thereby 
waives  his  right  to  a  forfeiture,  and  a  continued  fail- 
ure to  pay  the  taxes  does  not  amount  to  a  revival  of 
the  right  to  declare  a  forfeiture88. 


82.  Thropp  v.  Field,   26  N.  J.  Eq.   82. 

83.  Med.  Co.  v.  Currey,  162  111.  441;    44  N.  B.  839;    53  A.  S.  R.  320. 

84.  West.  Etc.  Co.  v.  De  Witt,  130  Pa.  St.  235;    18  Atl.  724;    5  L.  R. 

A.   731. 

85.  Carraher  v.  Bell,  7  Wash.  81 ;    34  Pac.  469. 

86.  Gluck  v.  Blkan,  36  Minn.  80;    30  N.  W.  446. 

87.  Cheatham  v.  Blinke,  1  Tenn.  Ch.  M5. 
&8  Conger  v.  Durgee,  90  N.  T.  594. 


70  THE  LAW  OF  WAIVEB 

Sec.  64.  Many  leases  give  the  landlord  the  right 
to  declare  a  forfeiture  if  the  tenant  sub-lets  the 
premises.  This  right  may  'be  waived,  and  it  is 
waived  if,  after  its  accrual,  the  landlord  accepts  or 
distrains  for  rent  accruing  after  the  right  to  a  for- 
feiture has  become  fixed89.  And  he  waives  a  breach  of 
the  condition  against  sub-letting  by  accepting  pay- 
ment from  the  sub-lessee,  knowing  the  facts  as  to 
the  sub-letting90.  But  it  is  not  waived  by  accepting 
the  rent  from  an  assignee  in  ignorance  of  the  sub- 
letting91. But  if  he  knew  of  the  stub-letting  and  at- 
tempted to  provide  against  it  at  the  time,  the  waiver 
will  still  be  held  against  him92. 

5.     WAIVER  OF  THE  RIGHT  TO  'RESCIND. 

'Sec.  65.  Waiver  is  the  counter-part  of  election. 
To  waive  a  right  or  course  of  conduct  is  to  elect  to 
forego  the  benefits  of  that  right  or  to  pursue  another 
course.  And  it  is  well  settled  in  law  that  a  party 
having  the  privilege  of  following  either  of  two  in- 
consistent remedies  who  makes  an  election  of  one, 
commences  his  action  thereon  and  prosecutes  it  to 
final  judgment  or  receives  anything  of  value  there- 
under waives  the  right  to  thereafter  pursue  the  other 
inconsistent  remedy93.  And  it  is  also  the  rule  that 


89.  McKildoe  v.  Darracott,  12  Gratt.  278. 
Ireland  v.  Nichols,  46  N.  Y.  413. 

90.  Traverman  v.  Lippincott.  38  Mo.  App.  478. 

91.  Kew  v.  Tralnor,  50  111.  Afp.  629  :    150  IH.  150. 

92.  Crouch  v.  Wabash  Ry.,  22  Mo.  App.  315. 

Gulf  Ry.  v.  Settegast,  79  Tex.  256 ;    15  S.  W.  228. 

93.  Fields  v.  Bland.  81  N.  Y.  239. 
Carter  v.  Smith,  23  Wia.  497. 

Manser  v.  Jacob,  98  Mo.  331;    3  A.  S.  R.  531. 

Ewing  v.  Cook,  85  Tenn.  832 ;    3  S.  W.-  607 ;    4  A.   S.  R.  765. 

Wheeler  v.  Dunn,  13  Colo.  4£8 ;    22  Pac.  827. 


CONTRACTS  71 

he  cannot  abandon  the  remedy  chosen  and  follow  the 
other  one94.  The  matter  has  been  thus  expressed: 
A  man  may  not  take  two  contradictory  positions, 
and  wh,ere  he  has  the  right  to  choose  one  of  two 
modes  of  redress,  and  the  two  are  so  inconsistent 
that  the  assertion  of  one  involves  the  negation  or  re- 
pudiation of  the  other,  his  settled  and  deliberate 
choice  of  one  with  knowledge  or  means  of  knowledge 
of  such  facts  as  would  authorize  a  resort  to  either, 
will  preclude  him  thereafter  from  going  back  and 
electing  again95. 

'Sec.  66.  These  considerations  apply  with  great 
force  in  the  rescission  of  contracts,  and  especially 
those  induced  by  fraud.  But  in  such  cases  it  is  es- 
sential to  constitute  a  valid  waiver  of  the  right  of 
rescission  the  party  should  have  full  knowledge  or 
means  of  knowledge  of  the  material  facts,  that  he 
should  intend  to  affirm  the  contract  and  abandon  all 
right  to  recover  for  loss  resulting  from  the  fraud96. 
And  the  defrauded  party,  after  discovery  of  the 
fraud  has  two  remedies:  He  may  rescind  the  con- 
tract, if  he  can  restore  what  he  has  received  under 
it,  and  sue  for  the  consideration  he  has  paid,  or  if 
he  has  not  paid  anything,  he  can  repudiate  the  con- 
tract and  rely  on  the  fraud  as  a  defense  to  an  action 
for  the  consideration ;  or  he  may  retain  what  he  has 


Bradley  v.  Brigham,  149  Mass.  141 ;    21  N.  E.  301. 

Ihomas  v.  Joslin,  36  Minn.  1;    29  N.  W.  344;    1  A.  S.  R.  624. 

Farwell  v.  Myers,   59  Mich.  179  ;    26   N.  W.  328. 

94.  Crompton  v.  Beach,   62  Conn.  25;    25  Atl.  446;    36  A.  S.  R.  321. 
Lehnjan  v.  Van  Winkle,  92  Ala.  443 ;    8  So.  870. 

Bauman  v.  Jaffray,  6  Tex.  Civ.  App.  489 ;    26  S.  W.  260. 
OTDonald  v.  Constant,  82  Ind.  212. 

95.  Thompson  v.  Howard,  31  Mich.  312. 

96.  Cooley  on  Torts,  505. 


72  THE  LAW  OP  WAIVER 

received  and  sue  for  damages  for  the  fraud,  in 
which  case  he  affirms  the  contract  but  does  not  waive 
his  right  to  damages  for  the  fraud97.  But  it  has  been 
held  that  if  a  defrauded  party,  after  full  knowledge 
of  the  fraud,  refuses  to  repudiate  the  contract  but 
expressly  ratifies  it,  he  waives  his  right  to  sue  for 
damages98.  It  is  otherwise  if  he  has  not  full  knowl- 
edge of  the  fraud,  for  then  his  ratification  does  not 
waive  his  right  to  damages99.  And  it  has  been  said 
that  a  party  to  a  fraudulent  contract,  who  is  not  at 
fault,  may  waive  his  right  to  rescind  and  can  then 
sue  for  the  damages  he  has  sustained;  by  such 
waiver  he  does  not  lose  his  right  to  recover  for  his 
injury100. 

Sec.  67.  A  party  loses  his  right  to  rescind  a 
contract  induced  by  fraud  if  he  bring  an  action  to 
enforce  it  after  knowing  that  he  has  such  right1,  or 
if  he  discover  the  fraud  during  the  progress  of  the 
action  and  continue  the  case  thereafter2.  And  if  a 
vendor,  knowing  of  fraud  in  the  contract,  recover 


97.  Wilson  v.  Hundley,  96  Va.  96;    30  S.  E.  492;    70  A.  S.  R.  837. 
Baird   v.    Howard,    51    Oh.    St.    57;     36    N.   B.    732;     46   A.    S.   R. 

550. 

Bowen  v.  Mandeville,  95  N.  T.  237. 
Cottrill  v.  Krum,  100  Mo.  397;    13  S.  W.  753;    18  A.  S.  R.  549. 

98.  Nounnan  v.  Sutter  Land  Co.,  81  Cal.  1 ;    22  Pac.  515. 
St.  John  v.  Hendrickson,  85  Ind.  350. 

99.  Johnson  v.  Culver,  116  Ind.  278;    19  N.  E.  129. 

Kraus  v.  Thompson,  30  Minn.  64;    14  N.  W.  266;    44  A.  R.   182. 
100.     Tiffnay,  Sales,  119. 

Matlock  v.  Reppy,  47  Ark.  148;    14  S.  W.  »46. 

Peck  v.  Brewer,  48  111.  55. 

Robinson  v.  Siple,  129  Mo.  208  ;    31  S.  W.  788. 

Herrin  v.  Libbey,  36  Me.  357. 

Pearsoll  v.  Chapln,  44  Pa.  St.  9. 

1.  Acer  v.  Hotchkiss,  97  N.  T.  395. 

Nelson  v.  Carrington,  4  Munf.  332;    6  A.  D.  519. 
Pettus  v.  Smith,  4  Rich.  Eq.  197. 

2.  Sanger  v.  Wood,  3  Johns.  Ch.  416. 


CONTRACTS  73 

judgment  against  the  vendee,  he  cannot  follow  the 
goods  either  in  the  hands  of  the  vendee  or  a  pur- 
chaser from  him;  nor  can  he  claim  the  property  if 
he  sue  for  the  purchase  price3 ;  and,  conversely,  pay- 
ment of  the  purchase  price  after  knowledge  of  fraud 
in  the  sale  is  a  waiver  of  the  right  to  rescind4. 

Sec.  68.  There  is  some  difference  among  the 
authorities  as  to  whether  a  defrauded  vendor  of 
goods,  by  attaching  the  goods,  waives  his  right  to 
rescind  the  contract  of  sale.  On  the  one  hand,  it  is 
said  that  such  attachment  is  a  complete  waiver  of 
the  right  to  rescind5.  In  the  last  case  cited  in  the 
above  note  it  is  said  that  "as  the  plaintiff  had  an 
election  between  inconsistent  remedies,  as  where 
one  action  is  founded  on  an  affirmance  of  a  voidable 
contract,  any  decisive  act  of  affirmance  or  disaffirm- 
ance,  if  done  with  knowledge  of  the  facts,  deter- 
mines the  right  of  the  parties  once  and  for  all ;  and 
that  the  institution  of  the  attachment  suit  by  plaint- 
iff was  such  a  decisive  act."  And  it  is  again  ex- 
pressed thus:  "The  attachment  was  levied  and  the 
action  pending  when  the  present  action,  which  re- 
pudiates the  contract  and  has  no  support  except  on 
the  theory  of  its  disaffirmance  was  commenced.  The 


Beloit  Bank  v.  Beale,  34  N.  Y.  475. 

Carter  v.  Smith,  23  Wis.  499. 

Morris  v.  Rexford,  18  N.  Y.  552. 

Lloyd  v.  Brews ter,   4  Paige   537;    27  A.   D.   88. 

O'Donald  v.  Constant,  82  Ind.  212. 

Bulkley  v.  Morgan,  46  Conn.  393. 

Dennis  v.  Jones,  44  N.  J.  Eq.  513  ;    14  Atl.  913  ;    6  A.  S.  R.  899. 

Knuckolls  v.  Lea,  10  Hump.  577. 

Bulkley  v.  Morgan,  46  Conn.  393. 

Acer  v.  Hotchkiss,  97  N.  Y.  395. 

O'Donald  v.  Constant,  82  Ind.  212. 

Conrow  v.  LiUie,  lli  .N.  Y.  »i.,    ..  X.  B.  M*v,,    i»  .u  Jti.  A.  uji. 


74  THE  LAW  OF  WAIVER 

two  remedies  are  inconsistent — by  one  the  whole  es- 
tate of  the  delbtor  is  pursued  in  a  summary  manner, 
and  the  payment  of  a  debt  sought  to  be  enforced  by 
execution ;  by  the  other,  specific  articles  are  demand- 
ed as  the  property  of  the  plaintiff.     One  is  to  re- 
cover damages  in  respect  of  the  breach  of  contract ; 
the  other  can  be  maintainable  only  by  showing  that 
there  was  no  contract.    After  choosing  between  these 
two  modes  of  proceeding,  the  plaintiffs  no  longer 
had  an  option.     By  bringing  the  first  action  after 
knowledge   of   the   fraud   practiced,   the   plaintiffs 
waived  the  right  to  disaffirm  the  contract,  and  the 
defendants  may  justly  hold  them  to  their  election"6. 
On   the   other  hand  it  is  maintained   that   the 
•bringing  of  an  attachment  suit  is"  not  necessarily, 
nor  even  prima  facie  an  affirmance  of  the  contract 
nor  a  waiver  of  the  right  to  rescind;  and  that  the 
levy  of  an  attachment  on  property  as  that  of  the 
defendant  is  not  a  waiver  of  the  right   of  the  plaint- 
iff to  seize  the  property  as  his  own7.     The  courts 
supporting  the  latter  doctrine,  however,  seem  to  do 
so  with  some  qualification.    They  seem  to  indicate 
that  if  the  attachment  suit  were  prosecuted  to  final 
judgment  the  right  of  plaintiff  to  change  positions 
and  bring  an  inconsistent  action  would  be  gone,  but 
that  he  could  bring  such  action  at  any  time  before 
judgment.    It  has  been  said  thus:  "A  creditor  hav- 
ing elected  simply  to  pursue  one  of  two  inconsistent 


«.     Conrow  v.  Little,  supra. 

7.     Johnson  v.  Frew,  33  Hun  193. 

Equitable  Foundry  Co.  v.  Hersee,  33  Hun  169. 

Anchor  Milling  Co   v.  Walsh,  20  Mo.  App.'  107, 

Lapp  v.  Ryan,  23  Mo.  App.  136. 

Johnson-B.  Co.  v.  Cent.  Bank,   116  Mo.   558;    22  S.  W.   813;    33 
A.  S.  R.  615. 


CONTRACTS  75 

remedies  is  not  bound  thereby  but  may  subsequently 
dismiss  and  abandon  before  final  judgment  the  one 
first  chosen,  and  then  pursue  the  other  in  the  absence 
of  intervening  rights,  injury  or  benefit"8. 

Sec.  69.    It  is  difficult  to  concur  in  the  reason- 
ing of  the  cases  holding  to  the  latter  doctrine.    We 
think  that  a  party,  in  possession  of  all  the  material 
facts  should  know  his  own  mind,  that  he  should  be 
able  to  determine  what  remedy  he  desires  to  pursue, 
that  if  he  be  competent  to  contract  he  should  be  com- 
petent to  say  which  of  two  remedies  it  is  to  his  ad- 
vantage to  follow,  and  once  having  determined  there- 
on, he  should  be  required  to  abide  the  result  of  his 
own  judgment,  and  not  be  permitted  to  play  fast 
and  loose  either  during  the  pendency  of  the  action 
or  after  the  final  judgment  therein.    For  by  an  at- 
tachment he  says  that  the  property  is  that  of  the  de- 
fendant.   The  proceeding  is  re-enforced  by  the  so- 
lemnity of  an  affidavit,  and  it  is  hardly  in  keeping 
with  the  requirements  of  good  faith  to  permit  him 
later  to   retract   his   declaration   thus    solemnized. 
And,  in  fact,  under  such  doctrine  there  is  nothing  to 
prevent  him  from  dismissing  even  his  second  action 
if  he  should,  after  filing  it,  conclude  it  not  to  be  to 
his  best  interests,  and  again  resort  to  his  first  action 
or  even  enter  a  new  form  of  suit.    The  spirit  of  fair 
play  demands  the  application  of  the  well -settled  rule 
that  a  defrauded  party  has  but  one  election  to  re- 
scind or"  affirm  the  contract ;  a'nd  his  election,  once 
made,  is  final  and  conclusive9. 


8.  Johnson-B.    Co.   v.   Mo.    Pac.    Ry.,    126    Mo.    344;     28    S.   W.    870; 

47  A.  S.  B.  675. 

9.  Grymes  v.  Sanders,  93  U.  S.  55. 


70  THE  LAW  OF  WAIVEB 

Sec.  70.  The  authorities  are  agreed,  however, 
that  there  cannot  be  an  election  of  remedies,  or  a 
waiver  of  fraud  or  the  right  to  rescind  a  contract 
induced  'by  fraud  unless  the  party  had  full  knowl- 
edge or  means  of  knowledge  of  all  the  material  facts 
in  the  case10.  This  is  under  the  rule  applicable  to  all 
waivers  that  knowledge  of  a  right  is  an  absolute  pre- 
requisite to  an  abandonment  of  the  right.  But  after 
knowledge  of  the  fraud  is  brought  home  to  a  party, 
he  must  exercise  his  right  to  rescind  the  contract 
within  a  reasonable  time  thereafter  or  the  right  will 
be  forever  lost  to  him11.  Or,  as  it  has  been  said,  a 
party  must  exercise  his  right  promptly  or  it  will  be 
denied  him12.  And  if  he  waits  a  considerable  length 
of  time,  he  will  be  held  to  have  waived  the  right  by 
acquiescence13.  What  is  a  reasonable  time  depends 


Bigelow  on  Fraud,  436. 

Hart  v.  Miller,  95  Va.  321 ;    27  S.  B.  831. 

Wilson  v.  Hundley,  96  Va.  96;    30  S.  E.  492;    70  A.  S.  R.  837. 

Bigelow  on  Estoppel,  5th  Ed.   573. 

Herman  on  Estoppel,    (1886)    1177. 

Thweatt  v.  McLeod,  56  Ala.  375. 

Evans  v.  Montgomery,  50  la.  235. 

Bassett  v.  Brown,  105  Mass.  551. 

10.  Sanger  v.  Wood,  3  Johns.  Ch.  421. 
Connlhan  v.  Thompson,  11  Mass.  270. 

Terry  v.  Munger,  121  N.  Y    161;    24  N.  E.  272;    18  A.  S.  R.  SOS. 
Bulkley  v.  Morgan,   46  Conn.  393. 

11.  Bank  v.  Hiatt,  58  Cal.  234. 
Whitcomb   v.   Denio.    52   Vt.   382. 
Wilbur  v.  Flood,  16  Mich.  40. 
Morgan  v.  McKee,  77  Pa.  St.  228. 
Neblett  v.  McFarland,  92  U.  S.  101. 
Cookingham  v.  Dusa,  41  Kans.  229 ;    21  Pac.  95. 
Gatllng  v.  Newell,  9  Ind.  572. 

Taylor  v.  Short,  107  Mo.  384;    17  S.  W.  970. 
1*.     Hall  v.  Fullerton,  67  111.  450. 

White  v.  Dodds,  42  Barb.  565. 
13.     2  Pomeroy  Eq.  Jur.  499  and  817. 

Bassett  v    Salisbury  Mfg.  Co.,  47  N.  H.  426. 

Tash  v.  Adams.  10  Gush.  252   (Mass.). 

Cobb  v.  Hatfleld.  46  N.  T.  533. 


CONTRACTS  77 

on  the  facts  and  circumstances  of  each  particular 
case.  Delays  for  one  and  one-half14,  three15,  and 
eight  years16  have  been  held  fatal  to  the  right  to  re- 
scind. 

Sec.  71.  It  is  further  the  rule  that  one  desiring 
to  be  relieved  from  a  contract  induced  by  fraud  must 
not  only  act  promptly  in  repudiating  the  contract, 
but  he  must  not  do  any  act  evidencing  an  intention 
to  be  bound  by  it.  Such  act  will  constitute  a  waiver 
of  the  right  to  rescind.  For  instance,  remaining  in 
possession  of  the  subject-matter  of  the  contract17, 
making  payments18,  and  asking  extensions  of  time19 
have  been  held  sufficient  to  evidence  a  ratification, 
and,  therefore,  to  constitute  a  waiver  of  the  right 
to  rescind.  And  the  same  result  follows  the 
continuing  to  deal  with  the  property  after  knowledge 
of  fraud  in  its  sale  as  if  the  contract  still  subsisted20. 
But  it  is  said  that  mere  possession  for  a  considerable 
time  will  not  of  itself  amount  to  a  waiver  of  the  right 
to  rescind21.  And  neither  does  a  sale  of  part  of  the 
property  amount  to  a  waiver  if  the  proceeds  are  ac- 
counted for22.  So,  receiving  part  of  chattels  under  a 


14.     Hammond  v.  Wallace,  85  Cal.  522  ;    24  Pac.  837 ;    20  A.  S.  R.  234. 
16.     Blackman  v.  Wright,  96  la.  541;    65  N.  W.  843. 

16.  Boyer  v.  East,  161  N.  Y.  580 ;    56  N.  E.  114 ;    76  A.  S.  R.  290. 

17.  Dennis  v.  Jones,  44  N.  J.  Eq.  513;    14  Atl.  913;    6  A.  S.  R.  899. 
Knuckolls  v.  L-ea,  10  Hump.  577. 

18.  Ruhl  v.  Mott,  120  Cal.  668 ;    53  Pac.  304. 

Delano  v.  Jacoby,  96  Cal.  275;    31  Pac.  290;    31  A.  S.  R.  201. 

19.  Delano  v.  Jacoby,  96  Cal.  275;    31  Pac.  290;    31  A.  S.  R.  201. 
SO.     Bassett  v.  Brown,  105  Mass.  551. 

1  Story's  Eq.  Jur.  (13th),  p.  227. 
Schubber  v.  Dletz,  83  N.  Y.  300. 
McClean  v.  Clapp,  141  U.  S.  429. 
Marshall  v.  Gilman,  47  Minn.  131;  49  N.  W.  688. 

21.  Neblett  v.  McFarland,  92  U.  S.  101. 

Goodrich  v.  Lathrop,  94  Cal.  56 ;    29  Pac.  329 ;    28  A.  S.  R.  91. 

22.  Tarkington  v.  Purvln,  128  Ind.  182;    25  N.  E.  879;    9  L.  R.  A. 

607. 


78  THE  LAW  OF  WAIVER 

fraudulent  contract  is  not  a  waiver  of  the  right  to 
damages23.  But  retaining  the  benefits  of  a  fraudulent 
contract  amounts  to  a  waiver  of  the  right  to  rescind2^ 
And  if  a  party  waive  his  right  to  rescind,  he  at  the 
same  time  loses  his  right  of  stoppage  in  transitu25. 
If  a  party  continue  to  carry  goods  to  a  certain  place 
after  discovering  the  owner  has  misrepresented  the 
distance,  he  waives  the  right  to  rescind  his  contract 
to  carry  the  goods26. 

A  party  desiring  to  rescind  a  contract  cannot 
hold  on  to  such  part  of  what  he  has  received  under  it 
as  is  desirable  to  him  and  avoid  the  residue ;  and  the 
rule  is  that  he  must  return  what  he  has  received  or  he 
waives  the  right  to  rescind27. 


23.  Mallory  v.  Leach,  35  Vt.  156;    82  A.  D.  625. 
Haven  v.  Neal,  43  Minn.  315;    45  N.  W.  612. 

24.  Bowman  v.  Ayers,  2  Idaho  305;    13  Pac.  346;    and  2  Idaho  465' 

21  Pac.  405. 

25.  Kearney,   etc.,    Co.   v.   Union   Pac.,    97   la.    719;    66    N.   W.    1099; 

59  A.  S.  R.  434. 

26.  S.  &  S.  Ry.  Co.  v.  Row,  24  Wend.  74;    35  A.  D.  588. 

27.  Bowman  v.  Ayers,  supra. 


BELLS  AND  NOTES  79 


CHAPTER  3. 

BILLS  ANiD  NOTES. 


1.  IN  GENERAL  ...................... 

2.  WAIVER   CONTAJNEiD  IN  THE   INSTRUMENT  _ 

A.  On  face  of  instrument  ............  74 

B.  Waiver  in  indorsement  ...........  .    75 

3.  ORAL  WAIVER  — 

A.  Concurrently  with  indorsement  .........  ,       76 

B.  Subsequently    to   indorsement,    but   prior   to 

maturity  .......................  _  73 

C.  At  maturity  ......................  t  79 

D.  After  maturity  ........................  80 

4.  WAIVEIRS  AFTER  DE1FAULT  — 

A.  By  promise  to  pay  — 

(1  )     Sufficiency  of  promise  .............  81 

(2)  Conditional  promises  ..............  85 

(3)  Insufficient  promises  .............  86 

B.  Knowledge  essential  to  promise  ...........  88 

(1)  Whether  promise  presumes  knowledge  90 

(2)  Knowledge  of  legal  effect  of  holder's 
default  ..........................    94 

C.  Payment  or  part  payment  as  waiver  ........    95 

D.  Receipt  by  indorser  of  money,  property  or 

other  security  as  waiver  ................    97 

IB,    Waiver   by   conduct  .....................  104 

5.  CONSIDERATION  FOR  WAIVER  ..............  105 

6.  WH'ETHEIR   WAIVER  IS  WITHIN  STATUTE  OF 
FRAUDS  ..........................  .........  109 

7.  EXTENT  OF  WAIVER  ........................  110 

1.  IN  GENEBAL:--Sec.  72.  As  far  as  it  is 
applicable  to  commercial  paper,  the  law  of  waiver  has 
to  do  almost  solely  with  its  presentment  for  payment, 
protest  and  notice.  And  it  follows  that  a  considera- 


80  THE  LAW  OF  WAIVER 

tion  of  the  subject  involves  a  dealing  chiefly  with  the 
parties  secondarily  liable  on  the  paper.  Such  parties 
have  an  absolute  right  to  the  formalities  required  by 
law  to  render  their  liability  fixed,  and,  unless  excused 
by  some  act  of  their  own,  these  formalities  must  be 
complied  with  or  the  parties  will  be  released  from  the 
paper.  But  the  holder  of  such  paper  is  in  many  in- 
stances and  under  many  circumstances  absolved  from 
his  duty  in  fixing  liability  upon  the  parties  secondar- 
ily liable,  and  the  liability  of  the  latter  may  become 
absolute  even  in  the  absence  of  presentment,  protest 
and  notice.  Prompt  presentment,  protest  and  notice 
are  requirements  of  the  law  existing  solely  for  the 
benefit  of  a  drawer  or  indorser  of  a  bill  or  note.  It 
is  wholly  in  their  province  to  determine  whether  they 
will  insist  upon  the  fulfillment  of  these  requirements. 
They  may  dispense  with  such  formalities  by  express 
agreement,  or  by  language  or  conduct  clearly  and 
reasonably  disclosing  an  intention  not  to  insist  upon 
them.  In  either  of  such  events  it  becomes  unneces- 
sary for  the  holder  of  a  commercial  instrument  to 
take  the  steps  otherwise  required,  for  by  the  agree- 
ment or  conduct  of  the  one  entitled  to  requir  these 
steps  they  have  been  waived,  and  it  would  be  a  fraud 
upon  the  holder  to  permit  him  to  suffer  through  the 
inconsistent  language  or  conduct  of  the  drawer  or 
indorser. 

Sec.  73.  A  waiver  of  presentment,  protest  and 
notice  may  be  made  by  him  who  is  entitled  to  require 
it  either  orally  or  in  writing;  and  whether  the  one 
or  the  other,  the  waiver  may  be  expressed  in  direct 
and  positive  terms,  or  it  may  result  from  an  under- 
standing between  the  parties  from  which  it  is  rea- 
sonably to  be  inferred  that  a  waiver  was  intended, 


BILLS  AND  NOTES  81 

or  it  may  be  shown  by  custom28,  or  implied  from  con- 
duct indicating  that  these  steps  would  not  be  re- 
quired. Where  statutory  provisions  exist  governing 
the  taking  of  these  formal  steps,  of  course  these  pre- 
vail29. And  where  a  waiver  has  occurred,  proof 
thereof  is  equivalent  in  every  way  to  the  taking  of 
the  steps30.  But  it  is  essential  to  every  waiver  of 
presentment,  protest  and  notice  that  at  the  time 
thereof  the  (party  against  whom  the  waiver  is  sought 
to  be  established  must  have  knowledge  of  the  facts 
discharging  him  from  liability,  or  at  least  means 
whereby  he  could  acquire  such  knowledge.  Without 
being  aware  of  the  facts,  no  waiver  can  be  imputed 
to  him31.  But  it  is  not  requisite  that  he  should  have 
knowledge  of  the  legal  effect,  for  he  will  be  bound 
by  his  waiver  whether  he  had  knowledge  of  the  law 
or  not32,  although  such  has  been  denied  by  a  great 
number  of  courts  under  a  holding  that  the  one 
against  whom  the  waiver  is  sought  to  be  invoked 
must,  at  the  time  of  the  alleged  waiver,  know  the  law 
as  well  as  the  facts33.  The  weight  of  judicial  think- 


28.  Quaintance  v.  Goodrow,  16  Mont.  376 ;    41  Pac.  76. 

Glidden  v.  Chamberlin,  167  Mass.  468 ;    46  N.  E.  103 ;    57  A.  S.  R. 

479. 

Annville  Bank  v.  Kettering,  106  Pa.  St.  531;    51  A.  R.  536. 
Hyde  v.  Stone,  61  U.  S.  20  How.  17 ;    15  L.  Ed.  874. 

29.  Thomas  v.  Mayo,  56  Me.  40. 

50.  Pugh  v.  McCormick,  81  U.  S.,   14  Wall.  361;    20  L.  Ed.  789. 
Perry  v.  Rhodes,  2  Cranch  C.  C.  37. 

51.  Norris  v.  Ward,  59  N.  H.  487. 

Tickner  v.  Roberts,  11  La.  14 ;    30  A.  D.  706. 

Lilly  v.  Petteway,  73  N.  Car.  358. 

Low  v.  Howard,  11  Gush.  268   (Mass.). 

Baskervlll  v.  Harris,  41  Miss.  535. 
82.     Hughes  v.  Bowen,  15  la.  446. 

Morgan  v.  Peet,  41  III.  347. 

Third  Bank  v.  Ashworth,  105  Mass.  503. 
•S.     Spurlock  v.  Union  Bank,  4  Hump.  336   (Tenn.). 

Freeman  v.  O'Brien,  38  la.  407. 


THE  LAW  OF  WAIVER 


;v     ? 


-    •«     v  f-    •  "ii  • 

ing  is  in  favor  of  the  rule  that  knowledge  of  the  law 
is  not  essential  to  a  valid  waiver,  and,  in  fact,  no 
good  reasons  exist  for  making  here  an  exception  to 
the  rule  that  ignorance  of  the  law  is  no  excuse.  The 
greater  number  of  cases  are  to  the  contrary. 

2.     WAIViBR  CONTAINED  IN  THE  INSTRUMENT. 

A.  ON  FACE  OF  INSTRUMENT:—  See.  74. 
An  express  waiver  of  presentment,  protest  or  notice 
is  frequently  embodied  in  a  'bill  or  note,  and  in  case 
this  is  done  the  waiver  is  effectual  against  an  in- 
dorser  in  'blank  who  is  also  the  payee34.  For  by  his 
indorsement  he  makes  the  contract  on  the  face  of 
the  instrument  his  own  and  adopts  its  terms.  And 
the  same  result  follows  whatever  the  provision  on 
the  face  of  the  instrument  may  be,  provided  the 
word®  used  fairly  show  an  intention  that  either  pre- 
sentment, protest  or  notice  shall  be  dispensed  with, 
as  where  on  the  face  of  the  instrument  such  ex- 
pressions are  used  as  "presentation  and  protest 
waived,"  "  demand,  protest  and  notice  of  protest 
waived,"  "the  makers,  indorsers  and  guarantors 
severally  waive  presentment  for  payment,  notice  of 
non-payment,  protest  and  notice  of  protest."  Such 
provisions  are  valid  waivers  as  against  drawers  and 
indorsers,  as  they  assume  the  liabilities  attaching  to 
the  instruments  by  so  becoming  parties  thereto36. 
And  while  this  is  especially  true  if  the  waiver  ex- 


34.     Phillips  v.  Dippo,  93  la.  35;    61  N.  W.  216;    57  A.  S.  R.  254. 
85.     Citz.  Bank  v.  Millet.  103  Ky.  1 ;    44  S.  W.  3<S6 ;    82  A.  S.  R.  548. 

State,  etc.,  v.  Hughes,  et  al.,    19  Ind.  A-pp.  266;    49  N.  E.  393. 

Woodward  v.  Lowry,  74  Ga.  148. 

Smith  v.  Lockbridge,  8  Bush.  423   (Ky.). 


83 


pressly  include  the  drawer  or  indorser36,  it  is  yet 
true  without  this,  for  an  indorsement  implies  a 
knowledge  of  all  the  instrument  contains  and  pre- 
cludes any  defense  'based  on  matters  shown  on  its 
face37. 

B.  WAIVER  IN  INDORSEMENT:— Sec.  75. 
It  is  said  that  that  which  is  written  on  the  back  of 
an  instrument,  as  well  as  that  written  on  the  face,  if 
relating  to  the  contract,  becomes  a  part  of  it,  and  a 
construction  must  be  given  the  whole  instrument  in 
order  to  determine  liability38.  'So,  where,  on  the 
back  of  a  note  were  printed  the  words  "The  indor- 
sers  waive  presentment,  protest  and  notice  of  dis- 
honor ' ',  and  the  payee  indorsed  his  name  in  another 
place  entirely  disconnected  with  the  memorandum, 
and  the  note  was  transferred,  it  was  held  that  the 
memorandum  was  a  part  of  his  contract  and  that  he 
was  bound  by  the  waiver39.  Somewhat  contrary  to 
this,  however,  it  has  been  held  that  an  indorsement 
is  a  contract  separate  and  distinct  from  the  instru- 
ment itself,  although  embodying  its  terms,  and  that 
each  indorsement  is  independent  of  all  others  and 
speaks  only  for  itself40.  Under  this  latter  doctrine 
each  indorser  is  liable  only  for  such  indorsement  as 
he  himself  makes,  independent  of  the  indorsements 
that  have  preceded  his;  so  that  if  one  indorser  fol- 


36.  Loveday  v.  Anderson,  18  Wash.  322 ;    51  Pac.  463. 

Iowa  Bank  v.  Sigstad,  96  la.  491 ;    65  N.  W.  407,  citing  2  Daniel 
Negot.  Inst.,  Art.  1092. 

37.  Durant  v.  Pierson,  124  N.  Y.  444;    26  N.  E.  1095;    12  L.  R.  A. 

145. 

38.  Farmers  !3ank  v.  Ewing,  78  Ky.  264  ;    39  A.  R.  231. 

39.  Farmers  Bank  v.  Ewing,   supra. 

Polo  Mfg.  Co.  v.  Parr.  8  Neb.  379 ;    30  A.  R.  830. 

40.  Woodman  v.  Thurston,  8  Gush.  157. 


84  THE  LAW  OP  WAIVES 

low  his  signature  with  such  statement  as  "  Present, 
ment  waived,"  " waiving  demand  and  notice,"  "I 
waive  demand, ' '  or  any  such  expression  intended  as 
a  waiver,  subsequent  indorsers  do  not  make  them- 
selves subject  to  the  waiver  unless  their  indorsement 
specially  declares  so41.  But  in  our  opinion  the  rule 
Should  be  turned  the  other  way,  and  an  indorser  who 
writes  his  name,  even  with  nothing  added,  under  the 
indorsement  preceding  his,  should  be  held  to  the  con- 
tract binding  the  previous  indorser  which  he  has,  by 
becoming  an  indorser,  adopted.  If  a  subsequent  in- 
dorser desires  to  relieve  himself  from  the  burdens 
of  such  a  previous  indorsement,  he  should  attach  to 
his  signature  some  form  of  words  manifesting  an  in- 
tention to  require  the  legal  formalities  of  present- 
ment, {protest  and  notice  to  be  complied  with42.  As 
was  seen  above,  an  indorser  makes  the  contract  con- 
tained in  the  face  of  the  instrument  his  own.  The 
first  indorser  takes  up  the  contract  of  the  maker  in 
case  of  default.  The  second  stands  behind  the  first, 
the  third  'behind  the  second,  and  thus  through  the 
entire  line  of  indorsements.  And  to  say  that  one  in- 
dorser can  assume  part  of  the  contract  of  his  im- 
mediate predecessor  and  not  be  bound  by  the  rest 
of  it  without  a  special  expression  to  that  effect,  is, 
in  our  opinion,  limiting  the  proper  scope  of  the 
waiver  of  these  formalities. 

3.    ORAL  WAIVER. 

A.      CONCURRENTLY    WITH    INDORSE- 
MENT:— Sec.  76.      The  courts  are  hopelessly  di- 


41.  Jackson  Bank  v.  Irons,  18  R.  I.  718;    30  Atl.  420. 

42.  Parshley  v.  Heath,  69  Me.  90. 

See:   Johnson  v.  Parker,  86  Mo.  App.  660. 


BILLS  AND  NOTES  85 

vided  in  their  opinions  as  to  whether  an  oral  waiv- 
er of  presentment,  protest  and  notice  can  be  made 
by  an  indorser  at  the  time  of  his  indorsement.  On 
the  one  side,  it  is  contended  that  permitting  evidence 
of  an  oral  waiver  contemporaneous  with  indorse- 
ment, is  a  violation  of  the  rule  forbidding  a  written 
instrument  to  be  varied  or  contradicted  by  parol; 
and  a  violation  of  the  requirement  that  the  written 
instrument  shall  contain  the  entire  agreement  of  the 
parties  at  the  time  of  its  execution.  And,  as  has 
been  said,  the  law  requires  that  the  paper  shall  tell 
its  own  story43.  The  courts  holding  to  these  theories 
deny  the  power  of  an  indorser  to  make  an  oral  waiv- 
er at  the  time  of  indorsement  of  his  right  to  require 
the  presentment,  protest  and  notice  otherwise  de- 
manded by  law44.  On  the  other  side,  however,  it  is 
said  that  evidence  of  an  oral  waiver  at  the  time  of 
indorsement  is  not  a  variation  from  the  terms  of  a 
written  instrument;  that  the  written  contract  is 
merely  a  promise  to  pay  the  debt  after  the  exercise 
of  due  diligence  against  the  maker ;  that  by  such  oral 
waiver  the  measure  of  diligence  to  be  required  of 
the  indorsee  has  been  settled;  and  if,  at  the  time  of 
the  indorsement,  the  indorser  promises  to  pay  the 


43.  Rodney  v.  Wilson,  67  Mo.  123. 

44.  Farwell   v.   St.   Paul   Trust   Co.,    45   Minn.    495;     48   N.   W.    326; 

22   A.    S.   R.   742;     citing: 
Bank  of  U.  S.  v.  Dunn,   6  Pet.  51    (U.  S.). 
Renner  v.  Bank,  9  Wheat.  581. 
Dale  v.  Gear,  38  Conn.  15 ;    9  A.  R.  353. 
Bartlett  v.  Lee,  33  Ga.  491. 
Barry  v.  Morse,  3  N.  H.  132. 
Charles  v.  Denis,  42  Wls.  56;    24  A.  R.  383. 
Bank  v.  Smith,  27  Barb.  489. 
Campbell  v.  Robbins,  29  Ind.  271. 
To  same  effect,  see :   Torbert  v,  Montague,  38  Colo.  325  ;    87  Pae. 

1146. 


86  THE  LAW  OP  WAIVER 

note  absolutely,  or  to  pay  it  if  the  maker  does  not,  or 
if  any  other  such  understanding  exists,  the  holder 
will  be  excused  from  the  necessity  of  making  demand 
or  protest  or  of  giving  notice. 

Sec.  .77.  While  there  are  reasons  not  to  be 
passed  over  lightly  in  the  doctrine  first  announced, 
and  while  it  is  sustained  by  a  weighty  line  of  author- 
ities45, still  the  other  line  of  cases  seem  to  us  to  be 
more  in  accordance  with  the  reasoning  and  princi- 
ples governing  the  waiver  of  these  formalities  in 
other  connections  and  by  other  means,  and  we  be- 
lieve the  greater  number  of  courts  have  followed 
this  doctrine48. 

B.  SUBSEQUENT  TO  INDORSEMENT, 
BUT  PRIOR  TO  MATURITY  -.—See.  78.  An 
oral  waiver  of  presentment,  protest  or  notice  may 
be  made  after  the  indorsement  of  the  paper,  either 
by  an  express  agreement  to  that  effect  or  by  lan- 
guage from  which  that  effect  is  to  be  adduced47. 


45.  Foley  v.  Emerald  Co.,  61  N.  J.  L.  430;    39  Atl.  650. 
Barry  v.  Morse,  3  N.  H.;  132. 

Beeler  v.  Frost,  70  Mo.  186. 

Kern  v.  Van  Phul,  7  Minn.  74. 

Johnson  v.  Ramsey,  14  Vroom  279 ;    39  A.  S.  R.  580. 

Wright  v.  Liesenfeld,  93  Cal.  90 ;    28  Pac.  849. 

46.  Hazard  v.  White,  26  Ark.  174. 

Sloan  v.  Gibbes,  56  S.  Car.  480;    35  S.  E.  408;    76  A.  S.  R.  559; 

citing:    2  Daniel  Negot.  Inst.  1093. 
1  Parsons,  Notes  &  Bills,  584. 
Story  on  Bills,  Art.  317. 

Qiaintance  v.  Goodrow,  16  Mont.  376;    41  Pac.  76. 
Cummings  v.  Kent,  44  Oh.  St.  96  ;    4  N.  E.  710. 
Ahnvllle  Bank  v.  Kettering,  106  Pa.  St.  531 ;    51  A.  R.  536. 
Lane  v.  Steward,  20  Me.  98. 
Schmeid  v.  Frank,  86  Ind.  255. 

McMonigal  v.  Brown,  45.  Oh/  St.  499 ;    15  N.  E.  860. 
fy     Hibbard  v.  Russell,  16  N.  H.  410;    41  A.  D.  733. 
Free  v.  Kierstead,   16. Ind.  91. 


BELLS  AND  NOTES  87 

The  form  of  the  expression  is  immaterial,  the  es- 
sential matter  being  the  appearance  of  an  intention 
to  dispense  with  these  steps.  Thus,  where  the  draw- 
er of  a  bill  told  the  holder  to  hold  it  without  pre- 
sentment for  an  indefinite  time,  it  was  held  that  such 
was  a  waiver  of  presentment48 ;  also  where  the  draw- 
er or  indorser  knows  that  payment  will  not  be  made 
at  maturity  of  the  instrument  and  so  informs  the 
holder49;  also  a  request  by  an  indorser  for  more 
time,  with  knowledge  that  the  maker  had  absconded 
and  would  not  pay50 ;  and  a  request  to  let  a  note  run, 
together  with  a  statement  by  the  indorser  that  he 
would  pay  it  when  called  for51 ;  and  where  indorsers 
of  a  note  tell  the  holder,  prior  to  its  maturity,  not  to 
do  anything  with  it  and  they  will  pay  it52 ;  where  in- 
structions were  given  eighteen  months  before  ma- 
turity of  an  instrument  not  to  protest  it,  with  an 
assurance  that  it  would  be  paid  when  due53;  have 
each  been  held  sufficient  to  amount  to  a  waiver  of 
these  stefps.  An  indorsee  of  a  note  told  his  immedi- 
ate indorser  that  he  had  no  confidence  in  the  other 
parties  to  the  note  and  should  look  wholly  to  him. 
The  latter  replied  that  he  would  take  it  up  when  due 
if  it  was  not  paid  by  any  other  party.  This  was  held 
a  waiver  of  the  right  to  notice  of  dishonor  of  the 


48.  Sheldon  v.  Chapman,  31  N.  Y.  644. 

49.  Minturn  v.  Fisher,  7  Cal.  573. 
Hunter  v.  Hoom,  64  Barb.  468. 

50.  Leffingwell  v.  White,  1   Johns.  Ch.  99. 

51.  Hale  v.  Danforth,   46  Wis.   555;     1   N.  W.  284. 

52.  Markland  v.   McDaniel,   51  Kans.   350 ;    32   Pac.   1114  ;    20   L.  R. 

A.  96. 

53.  Sigerson  v.  Mathews,  20  How.  49,6   (U.  S.). 

See:    Cady  v.  Bradshaw,  116  N.  T.  191;    22  N.  E.  371. 
Isham  v.  McClure,  58  la.  515. 


89  THE  LAW  OF  WAIVER 

note64.  But  where  it  was  understood  between  the 
indorser  and  indorsee  of  a  note  that  if  the  latter 
could  not  collect  it  from  the  maker  he  would  come 
back  to  the  indorser,  such  was  held  not  to  show  a 
waiver  of  notice  of  non-payment55.  And  the  maker 
and  holder  of  commercial  paper  cannot  by  any  ar- 
rangement between  themselves  affect  the  rights  of 
the  indorser56.  The  indorser  or  drawer  has  the  mat- 
ter within  his  own  hands  to  say  what  degree  of  dili- 
gence shall  be  exercised  by  the  holder  in  fixing  lia- 
bility in  case  of  the  default  of  the  maker  or  acceptor. 
If  he  desire  to  consider  as  sufficient  less  diligence 
than  that  required  by  law,  this  is  a  matter  of  which 
he  has  full  control  and  may  circumscribe  the  legal 
requirements  or  dispense  with  them  altogether  by 
an  oral  waiver  made  between  the  time  he  attaches 
his  name  to  the  instrument  and  the  maturity  there- 
of. 

C.  AT  MATUBITY:— Sec.  79.  On  the  day 
payment  is  due  by  the  terms  6f  a  commercial  instru- 
ment, the  indorser  or  drawer  may  orally  waive  or 
render  unnecessary  the  formalities  of  presentment, 
protest  or  notice  as  effectually  as  he  could  have  done 
previously  thereto.  The  same  facts  which  would 
amount  to  a  waiver  prior  to  maturity  will  consti- 
tute a  waiver  by  occurring  on  the  day  of  maturity. 
Thus,  where  an  indorser  informed  the  holder  that 
it  would  be  useless  to  call  upon  the  maker,  demand 
and  notice  were  held  thereby  waived  as  to  such  in- 


54.     Boyd  et  al.  v.  Cleveland,  4  Pick.  525  (Mass.). 

Lane  v.  Steward,  20  Me.  98. 

65.     Wright  v.  Lelsenfeld,  93  CaL  90;   28  Pac.  849. 
56.     Story  on  Notes,  291. 


BILLS  AND  NOTES  89 

dorser57.  And  where  an  indorser  admits  his  liabil- 
ity at  maturity  of  the  note  and  offers  to  "  arrange 
the  matter,"  and  afterward  by  his  conduct  shows 
that  he  considers  himself  bound,  such  acts  amount 
to  a  waiver  of  demand  and  notice58.  So,  one  who, 
on  indorsing  a  note,  tells  the  indorsee  to  look  to  him 
alone  for  payment,  and  on  the  last  day  of  grace  and 
subsequently  promises  to  pay  the  note  and  asks  not 
to  be  pressed,  waives  demand  and  notice  of  non-pay- 
ment by  the  maker59.  A  request  on  the  day  of  ma- 
turity that  the  instrument  be  not  protested,  is,  of 
course,  a  waiver  of,  such  protest  and,  therefore, 
necessarily  of  the  other  formal  stqps  in  fixing  lia- 
bility60. 

D.  AFTER  MATURITY :— See.  80.  A  waiv- 
er of  presentment,  protest  or  notice  may  be  made 
orally  after  maturity  of  commercial  paper  as  well 
as  before61,  and  any  recognition  of  liability  or  evi- 
dence of  an  intention  to  pay  will  be  sufficient  to  con- 
stitute a  waiver  whether  it  be  by  special  agreement 
or  by  conduct  from  which  continued  liability  is  to  be 
inferred.  The  most  frequent  occurrence  of  an  oral 
waiver  after  maturity,  however,  is  that  produced 
by  a  special  promise  to  pay,  and  on  account  of  the 
importance  of  such  promises,  they  will  be  treated 
separately  in  the  succeeding  sub-division. 


67.  Barker  v.  Barker,  6  Pick.  80  (Mass.). 

68.  Byles  on  Bills,  237. 

Moyer's  Appeal,  87  Pa.  St.  129. 

69.  Sheldon  v.  Horton,  53  Barb.  23. 

Qiaintance  v.  Goodrow,  16  Mont.  376;    41  Pac.  76. 
Markland  v.  McDanlel,  51  Kans.  350;    32  Pac.  1114;    20  L.  R. 
A.  96. 

60.  Scott  v.  Greer,  10  Pa.  St  101. 

61.  Yea*er  v.  Farwell,  86  U.  8.,  IS  Wall.  6 ;    20  L.  Ed.  476. 
Hinge  v.  Kinball,   124  Mass.  209. 


90  THE  LAW  OF  WAIVER 

4.   WAIVEIR  AFTER  DEFAULT. 

A.  BY  PBOMISE  TO  PAY:— (1)  SUFFI- 
CIENCY OF  THE  PROMISE :— Sec.  81.  The  con- 
sideration of  the  cases  involving  facts  dispensing 
with  the  legal  formalities  of  presentation,  protest 
and  notice  and  fixing  liability,  in  their  absence, 
upon  him  who,  otherwise,  would  be  entitled  to  in- 
sist upon  them  presents  two  distinct  doctrines  upon 
which  liability  still  exists  despite  the  lack  of  compli- 
ance with  these  required  formalities.  One  is  that  a 
legal  ^presumption  arises  from  the  conduct  of  an  in- 
dorser  or  drawer  that  these  steps  have  been  taken; 
the  other  is  that  by  his  conduct  he  has  waived  the 
taking  of  such  steps.  The  doctrines  of  presumption 
and  waiver  rest  upon  entirely  different  grounds,  al- 
though in  many  adjudications  the  distinction  be- 
tween them  has  not  been  clearly  drawn  nor  adverted 
to.  The  former  rests  upon  our  common  experience 
that  men  will  not  promise  to  do  what  they  are  under 
no  obligation  to  do  and  what  they  receive  no  consid- 
eration for  doing,  and  therefore  a  promise  after 
laches  of  the  holder  in  regard  to  such  legal  steps  is 
presumptive  evidence  that  the  indorser  knows  that 
all  things  have  been  rightly  done  to  hold  him. 
Waiver  is  the  opposite  of  this.  The  indorser  is  held 
on  the  ground  that  he  expressly  waives  the  defense 
which  he  might  have  set  up.  But  no  one  can  waive 
anything,  of  the  existence  of  which  he  has  no  notice, 
and,  therefore,  he  must  be  conscious  at  the  time  of  a 
new  promise  of  all  the  facts  which  are  in  law  essen- 
tial to  discharge  him  from  liability82.  If  the  doc- 


€2.     Glassford  v.  Davis,  36  N.  J.  L.  348. 


BILLS  AND  NOTES  91 

trine  of  presumption  prevails,  its  only  effect  is  to 
shift  the  burden  of  proof.  The  plaintiff  ma^y  rest 
uipon  the  new  promise  and  thus  throw  upon  the  in- 
dorser  the  double  burden  of  showing  laches  and  his 
want  of  knowledge  thereof63. 

Sec.  82.  But  we  are  concerned  here  with  waiv- 
ers only.  Presentment,  protest  and  notice  thereof 
may  be  waived  by  him  entitled  to  have  these  steps 
taken  as  effectually  after  maturity  of  the  paper  on 
which  he  is  holden  as  'before  its  maturity,  and  when 
once  waived,  his  liability  becomes  absolutely  deter- 
mined and  he  cannot  urge  the  lack  of  demand,  pro- 
test or  notice  as  a  defense. 

Sec.  83.  The  most  frequent  occurrence  of  waiv- 
er after  maturity  of  the  paper  and  default  of  the 
holder  in  complying  with  these  requirements  is  in 
the  case  of  a  new  promise  to  pay  made  by  the 
indorser  or  drawer.  But  to  amount  to  such 
a  waiver  and  to  entitle  the  holder  to  re- 
cover notwithstanding  the  requisite  formalities  have 
not  been  complied  wijth,  the  promise  to  pay 
must  be  unequivocal  and  unconditional,  or,  if  con- 
ditional, it 'must  be  accepted  on  the  conditions  which 
it  involves64.  But  the  promise  need  not  be  express ; 
it  is  sufficient  if  by  reasonable  intendment  the  lan- 


63.     Hazard  v.  White,   26  Ark.  280. 

Lewis  v.  Brehme,  33  Md.  412. 

Dickerson  v.  Turner,  12  Ind.  228. 
•4.     Isbell  v.  Lewis,  98  Ala.  550;    13  So.  335. 

Lary  v.  Young,  13  Ark.  401 ;    58  A.  D.  m. 

State  Bank  v.  Bartle,  114  Mo.  27$ ;    21  S.'  W. 

Schley  v.  Merritt,  37  Md.  352. 

Torbert  v.  Monta&ue,  38  uolo.  325  ;    87  Pac. 


92  THE  LAW  OF  WAIVEB 

guage  imports  or  implies  a  promise  to  pay65.  Thus, 
where  an  indorser  was  called  upon  to  pay  a  note  and 
stated  that  in  a  few  days  he  would  arrange  it,  this 
was  held  an  unconditional  promise  to  pay  and,  there- 
fore, a  waiver  of  the  laches  of  the  holder66.  So,  a 
statement  by  the  indorser  that  he  expects  he  will 
have  to  pay  the  note,  coupled  with  a  request  of  the 
holder  that  he  try  to  collect  it  from  the  maker,  will 
operate  as  a  waiver67.  And  the  same  effect  was  held 
to  have  resulted  where  the  indorser  procured  a  third 
person  to  purchase  the  note,  concealing  the  fact  of 
a  discharge  by  the  laches  of  the  holder68.  A  waiver 
was  also  held  where  the  indorser  requested  a  few 
days  time,  at  which  date  he  would  pay69,  and  where 
a  promise  was  made  to  arrange  so  that  a  draft 
could  be  paid70,  and  a  statement  by  the  Endorser  that 
he  would  pay  when  it  was  in  his  power71,  and  prom- 
ising to  send  funds  with  which  to  take  up  a  bill72. 
And  a  waiver  was  deduced  from  the  action  of  an  iri- 
dorser  in  telling  the  holder  that  he  was  collecting 
money  for  the  maker  and  not  to  be  uneasy  about  the 
note  as  he  would  see  that  it  was  paid73.  Likewise, 
where  he  agreed  to  pay  the  note  if  the  holder  would 
let  it  run  past  maturity74. 


65.  Reynolds  v.  Douglass,  37  U.  S.,  12  Pet.  497 ;    9  L.  Ed.  1171. 
Zacharle  v.  Kirk,   14   La.  Ann.  436. 

66.  Sigerson  v.  Mathews,  61  U.  S.,  20  How.  496;    15  L.  Ed.  989. 

67.  Parsons   -o.   Dickinson,    23   Mich.    56. 

68.  Libbey  v.   Pierce,   47   N.   H.   309. 

69.  Hopkins  v.  Liswell,  12  Mass.   52. 

70.  Bryam  v.  Hunter,  36  Me.  207. 

71.  Donaldson  v.  Means,  4  Dall.  109. 

72.  Read  v.  Wilkinson,  2  Wash.  C.  C.  514. 

73.  Bryant  v.  Wilcox,  49  Cal.  47. 

Jones  v.  Roberts,  191  Pa.  St.  152;    43  Atl.  123. 

74.  Hale  v.  Danforth,  46  Wis.  554;    1  N.  W.  284. 

And  see:    Souther  v.  Kenna  Bros.,  20  R.  I.  645;    40  Atl.  788. 


BILLS  AND  NOTES  93 

Sec.  84.  Where  the  indorser  asks  for  an  ex- 
tension of  time  this  is  in  effect  a  recognition  of  his 
liability  and  an  implied  promise  to  pay,  and  it  has 
been  held  sufficient  to  amount  to  a  waiver  of  present- 
ment and  notice75.  It  is  decidedly  so  where  the  re- 
quest is  coupled  with  a  promise  to  pay  if  the  request 
is  granted76.  And  the  same  is  true  of  a  promise  that 
if  the  holder  would  wait  a  few  days  the  note  would 
be  fixed  up77,  or  notifying  the  indorsee  at  the  time 
of  transfer  that  the  time  of  payment  had  been  ex- 
tended by  agreement,  and  requesting  delay  in  pre- 
sentment78, or  asking  that  suit  be  delayed  till  the 
maker  could  see  the  holder79 ;  and  an  agreement  be- 
tween the  parties  for  an  extension  of  time  has  the 
effect  of  waiving  or  dispensing  with  these  steps80. 

(2)  CONDITIONAL  PROMISES :— Sec.  85. 
Where,  after  the  laches  of  the  holder  of  a  'bill  or 
note  has  discharged  a  drawer  or  indorser,  the  latter 
promises  to  pay,  to  which  promise  is  attached  some 
condition,  the  promise  does  not  amount  to  a  waiver 
of  the  requirements  of  presentment,  rprotest  and 
notice  unless  the  condition  be  accepted ;  but  upon  ac- 
ceptance of  the  condition  the  promise  becomes  ab- 


Leonard  v.  Gary,  10  Wend.  504. 

Taunton  Bank  v.  Richardson,  5  Pick.  436  (Mass.). 

76.  Cady  v.  Bradshaw,  116  N  T.  188  ;    22  N.  E.  371 ;    5  L.  R.  A.  6ST. 
Sheldon  v.  Horton,  43  N.  Y.  93  ;    3  A.  R.  669. 

Walker  v.  Graham,  21  La.  Ann.  209. 
Amoskeag  Bank  v.  Moore.  37  N.  H.  539 ;  75  A.  D.  156. 
T«.     Hunter  v.  Hook,  64  Barb.  468. 

77.  Bush  v.  Gilmore,  45  App.  Div.  89;    61  N.  Y.  Supp.  682. 

78.  Glaze  v.  Ferguson,  48  Kans.  157;    29  Pac.  396. 

79.  Gove  v.  Vlnlng,  7  Met.  212;    39  A.  D.  770. 

80.  Ross  v.  Hurd,  71  N.  Y.  14. 

Sebree  Bank  v.  Moreland,  96  Ky.  150;    28  S.  W.  153  ;    29  L.  R. 

A.  305. 
Ala   Bank  v.  Rivers,  116  Ala.  1;    22  So.  58;    67  A.  S.  R.  9S. 


94  THE  LAW  OF  WAIVES 

solute  and  amounts  to  a  waiver  of  these  steps.  Thus, 
where  there  was  an  offer  of  payment  of  part  of  a 
note,  which  offer  was  not  accepted,  it  was  held  in- 
sufficient to  constitute  a  waiver81.  The  same  was 
held  of  an  offer  to  give  a  new  note82,  to  pay  in  con- 
federate money83,  or  in  depreciated  currency84;  and 
any  other  condition  attached  to  a  promise  will  have 
the  same  effect65. 

(3)     IN-SUFFICIENT  PROMISES  r-^Sfec.  86. 
The  promise  of  an  indorser  or  drawer  of  an  instru- 
ment, made  after  its  maturity  and  after  default  of 
the  holder  regarding  presentment,  protest  and  no- 
tice, must  be  positive,  unequivocal  and  unconditional 
(unless  the  conditions  are  accepted),  or  it  will  not 
be  a  waiver  of  the  default  of  the  holder.    Thus,  the 
mere  statement  of  the  party  that  he  would  rather 
pay  the  note  than  be  sued  will  not  be  sufficient  to 
constitute  a  promise  to  pay  a  note  from  which  he 
has  been  discharged  by  the  laches  of  the  holder88. 
And  a  mere  admission  that  the  note  would  hare  to 
be  paid  could  not  be  construed  as  a  waiver  of  the 
laches87,  nor  could  a  statement  that  the  note  must  be 
paid88,  nor  a  remark  to  a  third  person  that  the  in- 
dorser would  see  the  note  paid89.    Nor,  is  an  offer 
to  give  collateral  security  for  the  promissor's  lia- 


81.  Long  v.  Dismer,  71  Mo.  452. 

82.  Agan  v.   M'Manus,   11   Johns.   180. 

83.  Tardy  v.  Boyd,  26  Gratt.  631. 

84.  Newberry  v.  Trowbridge.  13  Mich.  275. 

85.  Isbell  Co.  v.  Lewis  Co..  98  Ala.  550 ;    13  So.  335. 
Ross  v.  Kurd.  71  N.  Y.  14. 

86.  Keyes  v.  Fenstermaker.  24  Cal.  32*. 

87.  Rosson  v.  Carrol,  90  Tenn.  90;    16  S.  W.  66;    12  L.  R.  A.  727. 

88.  Creamer  v.  Perry,  17  Pick.  332;    28  A.  D.  297. 

89.  Glidden  v.  Chamberline,  167  Mass.  486 ;    46  N.  E.  103 ;    57  A.  S. 

R.  479. 
Miller  v.  Hackley,  6  Johns.  375 ;    4  A.  D.  372. 


BILLS  AITD  NOTES  95 

•bility  as  indorser  sufficient90 ;  nor  a  mere  request  not 
to  press  the  maker  of  the  note91.  So,  a  statement 
that  the  indorser  had  been  very  unfortunate  in  in- 
dorsing the  note,  that  the  estate  of  the  maker  owed 
him  money  and  that  he  had  no  means  of  paying  the 
note  'but  from  that  source,  was  held  insufficient  to 
constitute  a  new  promise  to  pay  where  he  had  pre- 
viously been  discharged  through  the  holder's 
laches92.  And  a  letter  giving)  an  account  of  the 
writer's  circumstances  and  containing  a  statement 
that  under  such  circumstances  he  could  not  give  a 
bill  for  the  amount,  was  held  insufficient  as  a  waiv- 
er93. So,  the  assurance  of  the  indorser  that  he  would 
stand  good  for  payment94,  or  his  parol  representa- 
tion that  he  would  treat  the  matter  as  his  own  and 
see  that  it  was  paid  at  maturity95,  have  been  held 
insufficient  as  promises  constituting  a  waiver. 

Sec.  87.  It  has  been  held,  too,  that  an  agree- 
ment to  permit  an  extension  of  time  for  payment 
did  not  amount  to  a  waiver96,  nor  was  any 
waiver  implied  from  the  indorser 's  requesting 
the  indorsee  not  to  bring  suit  against  him  during  his 
absence  from  home  if  the  maker  failed  to 
pay  the  note,  as  such  request  itself  implied 
that  the  indorser  expected  the  holder  to  take  the 
proper  steps  against  the  maker  of  the  note97. 


90.  Carter  v.  Burley,  9  N.  H.  558. 

91.  Whittier  v.  Collins.  15  R.  I.  90;    23  Atl.  39  and.*7. 
Prentiss  v.  Danielson,  5  Conn.  175 ;    13  A.  D.  52. 

92.  Varies  t>.  Depass,  2  La.  Ann.   16. 

93.  Sherrod  v.  Rhodes,  5  Ala.  683. 

94.  Freeman  v.  O'Brien,  38  la.  406. 

95.  Bird  v.  Kay,  40  App.  Div.  533;    58  N.  T.  Supp.  170. 

96.  Norton  v.  Lewis,  2  Conn.   478. 
Michand  v.  Lagardw,  4  Minn.  43. , 

97.  Button  v.  Bratt,   (Ark.)  ;   11  S.  W.  821. 


96  THE  LAW  OF  WAIVER 

Where  an  indorser  'before  maturity  of  the  note  is  in- 
formed 'by  the  holder  that  the  maker  denied  liabil- 
ity and  had  told  him  they  would  not  pay  it,  and  the 
indorser  stated  that  he  did  not  have  the  money  to 
pay  the  note  but  that  he  was  liable  and  that  if  the 
holder  would  sue  the  maker,  and  should  fail  to  re- 
cover from  him,  that  he  would  pay  it  himself,  the 
indorser  was  held  not  to  have  thereby  waived  pre*- 
sentment  and  notice68. 

B.  KNOWLEDGE  OF  DEFAULT  ESSEN- 
TIAL TO  PROMISE:— Sec.  88.  It  is  the  unani- 
mous opinion  of  the  courts  that  a  promise  of  ar>  in- 
dorser or  drawer  to  pay  a  note  or  bill  after  its  matur- 
ity must  be  made  with  full  knowledge  that  present- 
ment and  protest  have  not  been  made  or  notice 
given,  and  that  after  knowledge  of  the  material  facts 
affecting  hns  liability  he  still  manifests  in  some  way, 
deducible  into  a  promise,  his  willingness  to  be  bound. 
For  it  is  said  that  a  promise  to  pay  made  in  ignor- 
ance of  the  promissor's  rights  is  of  no  effect  as  a 
waiver".  This  must  necessarily  be  apparent  in  con- 
sidering what  was  said  in  the  beginning  of  this  vol- 
ume, that  in  order  to  waive  a  right  a  knowledge  of 


«8.     Worley  v.  Johnson,  60  Fla.  294 ;  68  So.  543 ;  33  L.  R.  A.   (N.  8.) 

639. 
99.     Turnbull  v.  Maddux,  68  Md.  579;    13  Atl.  334. 

Hudson  v.  Wolcott,  39  Oh.  St.  623. 

Bank  v.  Farnsworth,  7  N.  Dak.  6 ;    72  N.  W.  901. 

Blum  v.  Bidwell,  20  La.  Ann.  43. 

Glaser  v.  Rounds,  16  R.  I    237;    14  Atl.  863. 

Salisbury  v.  Rennlck,  44  Mo.  454. 

Schierl  v.  Bauinel,  75  Wis.  75 ;    43  N.  W.  724. 

Hunt  v.  Wadleigh,  26  Me.  271 ;    45  A.  D.  108. 

Low  v.  Howard,  11  Gush.  268    (Mass.). 

Lilly  v.  Petteway,  73  N.  Car.  358. 

Norrls  v.  Ward,  59  N.  H.  487. 


BILLS  AND  NOTES  97 

such  right  must  actually  exist  in  the  mind  of  him 
against  whom  the  waiver  is  alleged,  or  there  must  be 
such  facts  and  circumstances  as  will  attribute  knowl- 
edge to  him.  And  since  such  knowledge  must  be 
brought  home  to  an  indorser,  it  follows  that  when 
it  is  shown  that  an  indorser  or  drawer  promised  to 
pay  an  instrument  after  its  maturity  when  no  de- 
mand had  been  made  or  notice  given,  it  must  also 
be  shown  that  the  holder's  failure  in  these  respects 
was  known  to  the  indorser  or  drawer100,  or  that 
knowledge  was  imputed  to  him,  as  held  by  some 
cases  hereinafter  discussed.  And  it  is  said  that  it 
matters  not  how  clear  the  proof  of  the  promise  or  in 
how  strong  terms  it  may  be  couched,  this  knowledge 
of  facts  must  apfpear1.  It  is  said  that  knowledge  of 
the  holder's  default  is  an  indispensable  part  of  the 
promise,  for  without  it,  it  cannot  be  inferred  that 
the  indorser  intended  to  admit  the  right  of  the  hold- 
er to  resort  to  him  if,  in  point  of  fact,  the  holder  had 
been  guilty  of  such  laches  as  would  discharge  the 
indorser  in  point  of  law2. 

Sec.  89.  It  being  the  rule  that  an  indorser  must 
have  full  knowledge  of  the  holder's  laches  and  of  all 
the  material  facts  in  order  that  his  promise  to  pay 
may  be  binding  upon  him  as  a  waiver3,  it  has  been 


100.     1  Parsons,  Notes  &  Bills,  601. 

Story  on  Bills,  320. 

Cloz  et  al.  v.  Miracle,  103  la.  198 ;    72  N.  W.  502. 

Walker  v.  Rogers,  39  111.  279. 

Baskerville  v.  Harris,  41  Miss.  535. 
1.  Farrlngton  v.  Brown,  7  N.  H.  271. 
t.  Thornton  v.  Wynn,  12  Wheat.  183  (U.  S.)  ;  «  L.  Ed.  595. 

Wtorklngmen's  Bkg.  Co.  v.  Beell,  57  Mo.  App.  410. 
S.     O'Rourke  v.  Hanchett,  35  N.  Y.  Supp.  328;    69  N.  T.  St.  R.  717. 

Parks  v.  Smith,  155  Mass.  26  ;    28  N.  E.  1044. 

Walker  v.  Rogers,  40  111.  278;    89  A.  D.  348. 

Martin  v.  Wlnslow,  Fed.  Gas.  No.  9172. 


98  THE  LAW  OF  WAIVER 

held  that  a  request  of  an  indorser  for  a  renewal  of 
the  note,  accompanied  by  part  payment,  are  not  such 
acts  as  constitute  a  waiver  unless  at  the  time  he  has 
knowledge  of  the  facts  by  which  he  has  been  re- 
leased4 ;  and  the  same  is  true  of  any  other  faots 
which  can  'be  construed  as  a  promise  to  pay  made 
after  default  of  the  holder.  The  rule,  therefore,  an- 
nounced and  universally  adhered  to  is  thus  stated : 
A  promise  by  the  indorser  of  a  promissory  note  to 
pay  it,  with  full  knowledge  of  the  laches  of  the  hold- 
er in  regard  to  presentment,  protest  or  notice,  is  a 
waiver  of  the  laches  of  the  holder  and  renders  the 
indorser  liable  on  the  note5. 

(1)  WHETHER  PROMISE  PRESUMES 
KNX)W^ELD<}E :— Sec.  90.  When  it  is  conceded 
or  proved  that  there  was  laches  of  the  holder 
in  respect  to  demand,  protest  or  notice,  the 
promise  to  pay  after  maturity  should  be  regarded  as 
prima  facie  evidence  that  the  party  making  it  knew 
of  such  laches,  whenever  such  knowledge  is  deemed 
necessary  to  constitute  a  waiver.  It  is  a  promise 
against  interest.  The  drawer  or  indorser  should 


U  S.  Bank  v.  Southard,  17  N.  J.  L.  473 ;    35  A.  D.  521. 
City   Bank  v.   Clinton   Bank,   49   Oh.   St.   351;     30   N.  E.   958;     27 
Oh.  L.  J.  325  ;    6  Bkg.  L.  J.  515. 

4.  Carnegie  Steel  Co.  v.  Const.  Co.   (Tenn.  Ch.)  ;    38  S.  W.  102. 

5.  Smith  v.  Lonsdale,  6  Oreg.  78. 

Amor  v.  Stoeckele,  76  Minn.  180;    78  N.  W.  1046. 
Curtis  v.  Sprague,   51   Cal.   239. 
Shaw  v.  McNeill,  95  N.  Car.  535. 

Oxnard  v.  Varnum,  111  Pa.  St.  193  ;    2  Atl.  224 ;    56  A.  R.  255. 
Stone  v.  Smith,  30  Tex.  138;    94  A.  D.  299. 
Tardy  v.  Boyd,  26  Gratt.   (Va.)   637. 

Bogart  v.  McClung,  11  Heisk.   (Tenn.)   105;    27  A.  R.  737. 
Parsons  v.  Dickinson,   23  Mich.   56. 

Rosson  v.  Carroll,  90  Tenn.  90 ;    16  S.  W.  66 ;    43  Alb.  L.  J.  493. 
Schwartz  v.  Wilmer,   90  Md.  136;    44  Atl.  1059. 
Farrington  v.  Brown,  7  N.  H.  271. 


BILLS  AND  NOTES  99 

know  when  the  instrument  to  which  he  was  a  party 
fell  due.  His  promise  to  pay  presumes  it  to  be  over- 
due and  unpaid.  And  if  he  has  not  received  notice, 
he  has  every  reason  to  suppose  that  it  was  not  given, 
and  that  the  steps  which  should  precede  it  were  not 
taken6;  and  it  is  otherwise  said  that  evidence  of  a 
promise  to  pay  is  admissible  as  tending  to  show  that 
due  notice  had  actually  been  received7;  and  that  a 
promise  to  pay  furnishes  presumptive  evidence  that 
the  proper  steps  were  taken  to  bind  the  one  making 
the  (promise8. 

Sec.  91.  Mr.  Daniel  in  his  work  on  Negotiable 
Instruments  not  only  states  as  a'bove  quoted  that  a 
promise  by  an  inolorser  to  pay  an  instrument  after 
its  maturity  should  be  regarded  as  prima  facie  evi- 
dence that  the  indorser  knew  at  the  time  of  the 
promise  of  the  laches  of  the  holder  in  respect  to  pre- 
sentment, protest  and  notice,  but  he  further  says 
that  there  is  certainly  strong  ground  for  contending 
that  upon  principles  of  estopjpel  proof  of  a  distinct 
promise  to  pay  after  maturity  (no  question  of  fraud 
or  deceit  arising)  should  in  itself  close  all  contro- 
versy as  to  demand,  protest  and  notice.  The  drawer 
may  not  only  waive  the  fact  that  demand,  protest  or 
notice  were  not  duly  made  or  given,  he  may  also 


6.  2  Daniel,  Negot.  Inst.  (5th  Ed.)  1152,  and  cases  cited. 

7.  Myers  v.  Standart,  11  Oh.  St.  29. 

8.  Stix  v.  Mathews,  63  Mo.  371. 
Brennan  v.  Lowry,  4  Daly  253   (N.  T.). 
Walker  v.  Walker,  7  Ark.  552. 

Frost  v.   Harrison,   8   La.  Ann    122. 

Hazard  v.  White.  26  Ark.  155. 

Cardwell  v.  Allen,  33  Gratt.   (Va.)   160. 

Davis  v.  Miller,  88  la.  114  ;    55  N,  W.  89. 

Sherman  v.  Clark,  3  McLean  91  ;    Fed.  Gas.  No.   12,763. 

Breed  v.  Hillhouse,  7  Conn.  523. 


100  THE  LAW  OF  WAIVER 

waive  proof  that  they  were  made  or  given.  And 
when  he  promises  to  pay  the  bill  or  note,  such 
(promise  imports  an  unconditional  assumption  of  it, 
and  a  dispensation  with  whatever  preliminary  evi- 
dence might  be  necessary  to  charge  him  with  its  pay- 
ment. The  holder  is  thereby  advised  that  the  party 
raises  no  question  as  to  his  liability,  and  to  permit 
him  when  sued  to  require  other  proof  of  what  he  has 
recognized  might  enable  him  to  practice  a  fraud  by 
lulling  the  holder  to  quiet  reliance  on  his  promise, 
and  then  springing  the  defense  upon  him  unawares, 
and  good  faith  would  seem  to  suggest  that  if  the 
party  deliberately  promises  to  pay,  he  shall  not  after- 
ward go  behind  that  promise  and  deny  facts  which  it 
presupposes  and  is  impliedly  based  upon9. 

Sec.  92.  But  excellent  as  the  above  reasoning 
is,  and  supported  as  it  is  by  some  authorities10,  it  is 
not  the  doctrine  sustained  by  the  weight  of  author- 
ity. The  majority  of  the  courts  do  not,  as  perhaps 
a  few  do11,  go  to  the  extent  of  holding  that  a  holder 
of  a  commercial  paper  has  the  burden  of  showing 
that  his  laches  in  regard  to  presentment,  protest  and 
notice  was  known  to  the  indorser  at  the  time  of  a 
promise  by  the  latter  to  pay,  made  after  maturity 
of  the  instrument.  The  tendency  has  been,  as  sug- 
gested by  Mr.  Daniel12,  to  strike  an  intermediate  at- 


9.     2  Daniel,  Negot.  Inst.   (5th  Ed.)   1149. 

10.  See  following  cases,  cited  by  Daniel,  supra: 
Debuys  v.   Mollere,  15  Mart.  318. 

Bogart  v.  M'Clurg,  11  Heisk.  105   (Tenn.). 

First  N.  Bank  v.  Weston,  25  App.  Div.  414;    49  N.  T.  Supp.  542. 

Porter  v.  Thorn,  30  App.  Div.  363 ;    51  N.  T.  Supp.  974. 

11.  Good  v.  Sprigg,  2  Cranch  C.  C.  172  ;    10  Fed.  Cas.  No.  5532. 
Hunt  v.  Wadleigh,  26  Me.  271;    45  A.  D.  108. 

12.  2  Daniel,  Negot.  Inst.  1150. 


BILLS  AND  NOTES  101 

titude  and  rest  the  decisions  upon  the  doctrine  that 
in  case  of  a  promise  by  an  indorser  or  drawer  after 
maturity  of  an  instrument  to  pay  same,  such  indors- 
er or  drawer  has  the  burden  of  proving  the  laches  of 
the  holder  in  regard  to  presentment,  protest  and  no- 
tice, and  must  rebut  the  ^presumption  arising  from 
his  promise  that  he  had  knowledge  of  the  holder's 
laches13.  But  the  cases  are  'by  no  means  harmonious 
as  to  this  doctrine,  and  a  state  of  flat  contradiction 
may  be  said  to  exist  among  the  courts. 

Sec.  93.  A  few  cases  may  illustrate  the  doc- 
trines discussed  in  the  preceding  section.  The 
burden  of  showing  that  the  new  promise  was  with 
knowledge  of  all  the  facts  is  on  the  party  seeking  to 
charge  the  indorser14.  If  laches  appears,  there  must 
be  clear  proof  that  the  defendant  knew  of  it  at  the 
time  he  made  the  promise15.  The  plaintiff  must  show 
knowledge  by  the  indorser  that  at  the  time  he  made 
the  promise  no  notice  had  been  given  him,  in  order 
to  establish  a  waiver16.  The  plaintiff  must  show  that 
at  the  time  the  promise  was  made  the  promisor  had 
notice  that  he  was  discharged17.  The  burden  is  on 
the  plaintiff  to  show  that  the  promise  was  made  with 
full  knowledge  of  the  laches18. 


13.  Loose  v.  Loose,  36  Pa.  St.  538. 

Smith  v.  Janes,   20  Wend.   192 ;    32  A.  D.  527. 
Veazie  v.  Rowland,  53  Me.  38. 

14.  Walker  v.  Rogers,  40  111.  278 ;    89  A.  D.  348. 
16.     Glaser  v.  Rounds,  16  R.  I.  235 ;    14  Atl.  863. 

16.  Glassford  v.  Davis,  46  N.  J.  L.  348. 

17.  Harris  v.  Allnut,  12  La.  465. 

18.  Vanwlckle  v.  Downing,  19  La.  Ann.  83. 
Spurlock  v.  Bank,  4  Hump.  336. 

U.  S.  Bank  v.  Southard,  17  N.  J.  L.  473 ;    35  A.  D.  521. 
La.  Bank  v.  Buhler,  22  La.  Ann.  83. 


102  THE  LAW  OF  WAIVER 

Contrary  to  the  above,  it  is  said  that  a  promise 
to  pay,  made  after  maturity  of  a  bill  or  note,  throws 
upon  the  promisor  the  douible  burden  of  showing 
laches  and  that  he  was  ignorant  thereof19.  Knowl- 
edge of  the  facts  may  be  inferred  from  circum- 
stances20 and  in  the  absence  of  evidence  to  the  con- 
trary a  promise  to  pay  will  be  presumed  to  have  been 
made  with  full  knowledge  of  all  the  facts21.  The 
jury  may  presume  knowledge  from  the  circum- 
stances22. 

(2)  KNOWLEDGE  OF  LEGAL  EFFECT 
OF  HOLDER'S  DEFAULT :— Sec.  94.  It 'being 
a  maxim  of  the  law  that  ignorance  of  the  law  excuses 
no  one,  its  application  to  a  promise  of  payment  by 
an  indorser  with  knowledge  of  the  facts  constituting 
his  discharge  leads  to  the  inevitable  rule  that  his 
ignorance  of  the  legal  effect  of  such  facts  in  consti- 
tuting a  waiver  of  presentment,  protest  and  notice 
will  not  release  him  from  the  obligation  of  the  waiv- 
er23. A  contrary  view  has  been  taken24,  but  the  doc- 
trine almost  universally  adhered  to  at  the  present 


19.  Oxnard  v.  Varnum,   111   Pa.  St.  193 ;    2  Atl.  224 ;    56  A.  R.  255. 
Commercial  Bank  v.  Clark,  28  vt.  325. 

Schmidt  v.  Radcliffe,  4  Strobh.  L.  296  ;    53  A.  D.  678. 

20.  Givens  v.  Mer.  Bank,  85  111.  442. 
Hughes  v.  Bowen,  15  la.  446. 

21.  Davis  v.  Miller,  88  la.  114 ;    55  N.  W.  89. 

22.  Hopkins  v.  Liswell,  12  Ma«s.  52. 

See:    Seldner  v.  Bank,   66  Md.  488;    8  Atl.  262. 

23.  Toole  v.  Crafts,  193  Mass.  110;   78  N.  E.  775. 
Morgan  v.  Peet.  41  111.  347. 

Matthews  v.  Allen,  16  Gray  594  ;    77  A.  D.  430. 
Cheshire  v.  Taylor,  29  la.  492. 
Story  on  Bills,  320. 

24.  Ballin  v.  Betcke,   11  la.  204. 

Fleming  v.  McClure,  1  Brev.  428 ;    2  A.  D.  <TL 
Seay  v.  Ferguson,  1  Tenn.  Ch.  293. 
Warder  v.  Tucker,  7  Mass.  449. 


BILLS  AND  NOTES  103 

time  is  that  his  ignorance  of  such  legal  effect  is  not 
a  bar  to  the  waiver25. 

C.     PAYMENT   OB   PABT   PAYMENT   AS 
WAIVER :— Sec.  95.     The  rules  obtaining  in  cases 
where  a  drawer  or  indorser  makes  a  promise  to  pay 
a  bill  or  note  after  knowledge  of  the  dereliction  o.f 
the  holder  in  regard  to  presentment,  protest  or  no- 
tice, are  equally  applicable  to  cases  where  the  same 
default  exists  and  the  drawer  or  indorser  has  made 
payment    or  part   payment   thereof.    And,   conse- 
quently, it  is  the  rule  that  if,  with  full  knowledge  of 
the  fact  that  the  holder  is  in  default  in  regard  to 
these  formalities,  the  drawer  or  indorser  make  pay- 
ment or  part  payment,  he  will  be  held  to  have  waived 
the  dereliction  of  the  holder  and  cannot  urge  it  as  a 
defense  to  an  action  on  the  paper26,  but  on  the  other 
hand,  it  will  bind  him  to  full  liability27.    And,  even 
as  a  promise  to  pay,  the  actual  payment  or  part  pay- 
ment is  prima  facie  evidence  that  he  who  paid  had 
been  duly  charged  by  the  required  steps  of  present- 
ment, protest  and  notice,  or  at  least  is  sufficient  from 
which  to  presume  that  he  had  knowledge  of  the  de- 
fault of  the  holder  in  taking  these  steps.    But  if  it 
be  shown  that  the  indorser  or  drawer,  at  the  time 
of  making  payment,  knew  the  facts,  it  is  settled  'that 
he- waived  the  default28. 


25.  Sebree  Bank  v.  Moreland,    96  Ky.  150;     28   S.  W.   153;     29  L.   R. 

A.  305. 

Glidden  v.  Chamberline,   167  Mass.  486;    46  N.  E.  103;    57  A.  S. 
R.  479. 

26.  Evans  v.  Gale,  17  N.  H.  573;    43  A.  D.  614. 

27.  Knapp  v.  Runals,  37  Wia.  135. 

28.  Harvey  v.  Troupe,  23  Miss.  538. 

Whitaker  v.  Morrison,  1  Fla.  29  ;    44  A.  D.  627. 
Read  v.  Wilkinson,  2  Wash.  C.  C.  514. 


104  THE  LAW  OF  WAIVEB 

®ec.  96.     Thus,  it  has  "been  held  that  payment  of 
the  interest  in  arrears  upon  the  note  by  an  indorser 
will  revive  liability,  although  at  the  time  of  paying 
same  he  protested  that  he  was  not  liable,  and  the 
payment  was  made  under  threats  of  suits  on  other 
claims  against  him  in  case  he  did  not  (pay  suoh  in- 
terest29.   And   payment   or   part   payment   of   the 
amount  by  one  of  two  indorsers  where  the  other  has 
received  notice,  is  a  waiver  of  the  want  of  notice  to 
himself30.    And  payment  of  interest  on  a  note  after 
its  maturity  ordinarily  has  the  same  effect81.    A  par- 
tial payment  is  prima  facie  evidence  that  the  neces- 
sary legal  steps  have  been  taken  to  fasten  liability32  \ 
but  it  is  said  that  such  a  prima  facie  ease  may  be 
rebutted  by   the  drawer  or  indorser   making   such 
part  payment  by  showing  that  the  holder  was  in  de- 
fault in  making  demand  or  giving  notice33 ;  and  this 
rebuttal  evidence  may  be  overcome  by  the  holder  by 
showing  that  at  the  time  of  the  payment  the  drawer 
or  indorser  was  aware  of  the  default  and  made  the 
payment  despite  the  holder's  dereliction,  in  which 
event  the  drawer  or  indorser  will  be  held  to  have 
waived  the  default  and  will  be  liable  to   pay  the 
whole  debt34. 


29.  Greeley  v.  Whitehead,  35  Fla.  623  ;    17  So.  643 ;    48  A.  S.  R.  258. 
Curtis  v.  Sprague,  51  Cal.  239. 

Sigourney  v.  Wetherell,  6  Met.  555. 
Salisbury  v.  Renick,  44  Mo.  554. 
Smith  v.  Curlee,  59  111.  221. 

30.  Sherer  v.  East  on  Bank,  33  Pa.  St.  134. 

81.     Greeley   v.   Whitehead.    35    Fla.    623;    17    So.    643;    48    A.    S.    R. 

258;    28  L.  R.  A.  286. 
32.     Chitty,  Bills,  564. 

83.     Porter  t>.  Thorn,  30  App.  Dlv.  363 ;    51  N.  T.  Supp.  974. 
34.     Williams  v.  Robinson.  13  La.  419. 


BILLS  AND  NOTES  105 

D.  RECEIPT  BY  INDORSEE  OF  MONEY, 
PROPERTY  OR  OTHER  SECURITY :— Sec.  97. 
Where  an  indorser  or  drawer  receives  from  the  one 
primarily  liable  on  a  commercial  instrument,  money 
or  oth«r  property  with  the  understanding  that  the 
debt  shall  be  paid  therefrom,  such  indorser  or  draw- 
er renders  himself  liable  as  the  principal  debtor,  and 
as  to  him  presentment,  protest  or  notice  are  unnec- 
essary35. And  it  is  held  in  many  cases  without  quali- 
fication that  the  taking  by  an  indorser  of  an  assign- 
ment of  all  of  a  maker's  property  as  security 
against  his  liability  constitutes  a  waiver  of  the  in- 
dorser's  right  to  require  demand,  protest  and  no- 
tice36; and  further  that  this  constitutes  such  waiver 
whether  or  not  the  property  is  amply  sufficient  to 
protect  the  indorser37.  So  the  taking  of  a  confes- 
sion of  judgment  covering  all  the  estate  of  the  mak- 
er of  a  note  has  been  held  a  waiver  of  demand  and 
notice38. 

Sec.  98.  But  these  doctrines  are  now  not  gen- 
erally sustained,  and  it  is  said  that  the  taking  of  an 
assignment  of  all  the  property  of  the  maker  is  not 
necessarily  or  even  presumptively  a  waiver  of  the 
requisite  legal  steps  to  bind  the  indorser89.  The  cri- 


35.  Story,   Notes,   Sec.   281. 

Bond  v.  Farnham,  5  Mass.  170. 
Ray  v.  Smith,  17  Wall.  418   (U.  S.). 
Wright  v.  Andrews,  70  Me.  86. 
2  Daniel,  Negot.  Inst.  1128. 

36.  Edwards  on  Bills,  637. 

1  Parsons,  Notes  &  Bills,  560. 

May  v.  Boissean,  8  Leigh  213. 

Bond  v.  Farnham,  supra. 
87.     Watkins  v.  Crouch,  5  Leigh  522. 
38.     Bank  v.  Myers,  1  Bailey  412  (S.  Car.). 
89.     Creamer  v.  Perry,  17  Pick.  182. 

1   Parsons,   Notes  ft  Bills.   660. 

Haskell  v.  Boardman,  8  Allen  39. 


106  THE  LAW  OF  WAIVER 

tenon  seems  to  be  whether  the  indorser  of  the  in- 
strument received  the  money  or  property  from  the 
maker  with  the  express  agreement  that  it  was  to  be 
used  to  pay  the  note,  or  whether  it  was  to  be  held 
only  as  security  against  liability.  If  the  former, 
then  demand,  protest  and  notice  are  unquestionably 
waived40.  So,  where  an  indorser  took  an  assign- 
ment of  a  maker 's  property  to  sell  it  and  pay  all  the 
maker's  debts,  but  to  first  pay  the  note  signed  by 
the  indorser,  demand  and  notice  were  thereby 
waived  as  the  indorser  became  the  principal41. 

Sec.  99.  The  question  of  whether  the  security 
taken  is  ample  to  protect  the  indorser,  has  often  been 
the  deciding  point  as  to  whether  or  not  the  taking  of 
security  is  a  waiver  by  the  indorser  of  demand,  pro- 
test and  notice.  Many  authorities  hold  that  the  se- 
curity, if  ample  to  protect  the  indorser,  will  consti- 
tute a  waiver42.  And,  on  the  other  hand,  they  hold 
that  if  the  security  is  insufficient  to  fully  protect  the 
indorser,  there  is  no  waiver43.  But  the  better  rea- 
soning, and  that  which  has  the  most  support  among 


40.  Wilson  v,  Senier,  14  Wis.  3SD. 
Spencer  v.  Harvey,  17  Wend.  489. 
Woodman  v.  Eastman,  10  N.  H.  367. 
Ray  v.  Smith,  17  Wall.  416. 

Moses  v.  Ela,  43  N.  H.  560. 

41.  Mech.  Bank  v.  Griswold,  7  Wend.  165. 
Clift  v.  Rogers,  25  Hun  41. 

42.  3  Kent.  Com.   113. 

Develing  v.  Ferris,  18  Oh.  170. 
Beard  v.  Westerman,  32  Oh.  St.  29. 
Marshall  v.  Mitchell,  35  Me.  221. 
Durham  v.  Price,  5  Terg.  300. 
Smith  v.  Lonsdale,  6  Oreg.  157. 
Story  on  Notes,   281. 

43.  Watkins  i>.  Crouch,  5  Lefgh  522. 

Second  Nat.  Bank  v.  McGuire,  S31  Oh.  St.  295. 
Spencer  v.  Harvey,  17  Wend.  489. 


BILLS  AND  NOTES  107 

the  authorities,  is  that  stated  by  Mr.  Daniel:  "It 
seems  to  us  a  total  misconception  of  the  obligation 
of  an  indorser  to  place  his  liability  at  all  upon  any 
question  involving  the  question  of  the  pecuniary  cir- 
cumstances of  his  principal,  or  security  to  himself, 
unless  in  taking  the  security  he  has  stepped  into  his 
principal's  shoes"44. 

Sec.  100.  So,  while  there  is  a  divergence  of 
opinion  as  to  whether  an  acceptance  of  an  assign- 
ment by  the  maker  of  his  property  to  the  indorser 
operates  as  a  waiver  of  demand,  protest  and  notice, 
it  is  generally  conceded  that  unless  the  assignment 
is  of  all  the  maker's  property,  or  the  security  af- 
fords ample  protection  to  the  indorser,  there  is  no 
such  waiver43.  And,  where  an  assignment  was  to 
indemnify  the  indorser  to  the  extent  of  one-fourth 
of  the  note,  it  was  held  no  waiver46.  It  has  been  held 
that  where  the  security  taken  was  not  amply  suffi- 
cient to  protect  the  indorser,  there  might  be  a  waiv- 
er of  notice  but  not  of  demand.  But  it  has  been  Ob- 
served that  there  are  no  good  reasons  to  support 
such  hair-splitting  distinctions. 

Sec.  101.  If  the  security  or  assignment  be  tak- 
en by  the  indorser  at  the  time  of  indorsement,  its  ac- 
ceptance could  not  operate  as  a  waiver  of  any  rights 
given  the  indorser  by  law;  for  he  could  only  forego 


44.  2  Daniel,  Negot.  Inst.  1134. 
Parsons,  Notes  &  Bills,  571. 

Taylor  v.  French,  4  E.  D.  Smith,  458   (N.  T.). 

Smith  v.  Ojerholm,  18  Tex.  Civ.  App.  Ill;    44  S.  W.  41. 

Holland  v.  Turner,  10  Conn. 

45.  Brandt  v.  Mickler,   28  Md.  436. 
Burrows  v.  Hanegan,  1  McClean,  309. 
Holman  v.  Whiting,  19  Ala.  708. 

1  Parsons,  Notes  &  Bills,  567-7D. 

46.  Watkins  v.  Crouch,  5  Leigh  522. 


THE  LAW  OF  WAIVEB 

those  rights  by  assuming  the  burdens  of  his  princi- 
pal by  an  original  promise  as  a  maker  or  co-maker  to 
pay  the  note,  and  this-is  precluded  by  the  fact  that 
he  signs  as  an  indorser  only,  or  he  would  make  an 
express  waiver  over  his  indorsement.  Of  course, 
proof  of  an  agreement  between  the  parties  that  the 
bill  or  note  should  be  paid  out  of  the  property  as- 
signed or  that  the  indorser  should  be  re-imbursed 
therefrom,  would  dispense  with  any  demand  or  no- 
tice. 

If  the  security  be  given  or  assignment  made  be- 
tween the  time  of  indorsement  and  the  maturity  of 
the  instrument,  there  is  no  change  in  the  rights  or 
liabilities  of  the  indorser  in  the  absence  of  proof  of 
special  circumstances  or  of  an  agreement  that  the 
indorser  shall  (pay  the  debt.  The  standing  of  the  in- 
dorser toward  the  holder  is  unchanged ;  and,  indeed, 
the  holder  may  never  know  of  the  transaction  be- 
tween the  indorser  and  the  principal,  and  it  would 
be  folly  to  say  that  a  party  could  take  advantage  of  a 
condition  that  he  knew  nothing  of.  And,  besides, 
unless  it  appear  that  the  indorser  agreed  to  dis- 
charge the  instrument,  the  assignment  made  or  se- 
curity given  by  the  principal  is  clearly  only  for  the 
protection  of  the  indorser  and  can  in  no  way  inure 
to  the  benefit  of  the  holder  or  in  any  manner  enlarge 
his  rights  or  excuse  his  duties. 

Sec.  102.  If  security  or  assignment  of  property 
of  the  principal  is  taken  by  an  indorser  after  matur- 
ity and  non-payment  of  an  instrument,  this  is  not  a 
waiver  of  the  holder's  default  as  to  demand  and  no- 
tice; for  it  cannot  properly  be  said  that  simply  by 
taking  security  the  indorser  intended  to  render  him- 
self absolutely  liable  to  pay  the  debt;  but  on  the 


BILLS  AND  NOTES  109 

other  hand  it  must  be  inferred  that  he  was  only  pro- 
tecting himself  against  the  possibility  of  his  future 
compulsory  payment47.  But  if  the  indorser  knew 
when  he  took  the  security  or  assignment  that  there 
had  been  no  notice  or  demand,  such  circumstances 
might  be  considered  on  the  question  of  waiver  by  the 
indorser  of  the  default  of  the  holder.  Parsons  says : 
"There  is  ground  to  contend  that  if  an  indorser 
takes  security  after  maturity,  this  is  evidence  of  de- 
mand and  notice;  for  why  should  a  person  take 
these  steips  to  secure  himself  unless  his  liability  ac- 
tually exist?"48  It  is  thought,  however,  that  such 
doctrine  should  be  applied  with  caution.  And  it 
should  be  fully  proved  that  when  taking  such  se- 
curity the  indorser  was  well  aware  of  his  legal  rights 
and  liabilities  in  the  matter49. 

Sec.  103.  It  may  readily  be  seen  from  the  fore- 
going that  there  is  considerable  conflict  among  the 
courts  as  to  the  effect  to  be  given  the  taking  of  se- 
curity by  an  indorser  from  the  maker  as  a  waiver 
of  presentment  and  notice.  In  some  cases  the  prop- 
erty is  taken  for  the  express  purpose  of  enabling  the 
indorser  to  pay  the  note  when  due,  and  in  other 
cases  it  is  taken  to  secure  the  indorser  as  an  indemn- 
ity. In  the  former  case,  the  indorser  is  held  to  take 
the  (place  of  the  maker,  and  the  necessity  of  present- 


47.  Tower  v.  Durrell,  9  Mass.  332. 
Creamer  v.  Perry,  17  Pick.  332. 
Otsego  Bank  v.  Warren,  18  Barb.  290. 
May  v.  Boisseau,  8  Leigh  164. 

First  Nat.  B.  v.  Hartman,  110  Pa.  St.  196 ;    1  Atl.  271. 
First  Nat.  B.  v.  Shriner,  110  Pa.  St.  188 ;    20  Atl.  718. 

48.  1  Parsons,  Notes  &  Bills,  619. 

49.  See :    Saunderson  v.  Saunderson,  20  Fla.  307. 
Walters  v.  Munroe,  17  Md.  154. 


110  THE  LAW  OF  WAIVER 

ment  and  notice  is  thereby  waived ;  but  in  the  latter, 
no  waiver  should  be  implied.  The  giving  of  notice 
to  an  indorser  is  for  the  purpose  of  enabling  him  to 
take  steps  against  the  maker  to  protect  -himself,  and 
when  he  is  amply  secured  the  reason  and  the  neces- 
sity of  giving  the  notice  are  obviated.  But  on  the 
other  hand  the  indorser  agrees  to  become  liable  only 
in  the  event  of  default  in  payment  by  the  maker,  and 
his  taking  security  is  held  to  be  as  an  indemnity 
against  his  conditional  liability.  It  has  been  held 
that  if  the  security  given  the  indorser  be  all  that  the 
maker  has,  such  will  constitute  a  waiver  for  the  rea- 
son that  the  maker  having  nothing  left,  the  indorser 
would  have  recourse  only  on  the  security  in  his 
hands.  But  on  all  these  points  the  courts  are  in 
hopeless  conflict,  and  it  is  impossible  to  deduce  from 
them  any  uniform  rules50. 

E.  WAIVER  BY  CONDUCT :— ; Sec.  104.  In 
addition  to  the  waivers  of,  and  agreements  to  waive 
presentment,  protest  and  notice  hereinbefore  dis- 
cussed, it  may  be  said  generally,  that  any  conduct 
of  an  indorser  calculated  to  put  the  holder,  when 
acting  with  reasonable  prudence,  off  his  guard,  and 
to  induce  him  not  to  insist  upon  his  rights  and  to 
omit  these  formalities,  will  be  sufficient  to  constitute 
a  waiver  of  these  steps51.  And  the  same  is  true 


60.  Jordan  v.  Reed,  77  N.  J.  L.  584;    71  Atl.  280. 
Selby  v.  Brinkley,    (Tenn.)  ;    17   S.   W.   479. 
Whittier  v.  Collins,  15  R.  I.  44  ;    23  Atl.  39. 
Woodbury  v.  Crum,  1  Biss.  284;    Fed.  Gas.  No.  17,969. 

Cruger  v.  Llndheim,   4  Tex.  App.   Civ.  Cas.   142;    16  S.  W.  420. 
Beard  v.  Westerman,  32  Oh.  St.  29. 
Mead  v.  Small,  2  Me    207 ;    11  A.  D.  62. 

61.  Boyd  v.  Bank,  32  Oh.  St.  526;    30  A.  R.  624. 

Selden  v.  Bank,  66  Md.  488;    8  Atl.  62;    6  Cent.  R.  471. 


BILLS  AND  NOTES  111 

where  the  act  of  the  indorser  has  misled  the  holder 
to  the  latter 's  injury52,  and  of  any  language  which 
is  intended  to  and  does  induce  the  holder  not  to  take 
these  steps53. 

5.  CONSIDERATION  FOB  WAIVER :— Sec. 
105.  When  a  waiver  of  presentment,  protest  and 
notice  appears  on  the  face  of  a  commercial  paper, 
or  is  on  the  paper  at  any  place  prior  to  indorsement, 
no  question  as  to  the  necessity  of  a  consideration  for 
such  waiver  can  be  raised;  for  in  such  event  the  in- 
dorsement, 'being  subsequent  to  the  waiver,  the  lat- 
ter becomes  a  part  of  the  indorser 's  contract  as 
much  as  his  promise  to  pay  in  the  event  of  the  de- 
fault of  the  maker,  and,  being  an  integral  part  of 
the  contract,  the  waiver  is  based  on  the  same  con- 
sideration as  the  other  obligations  of  the  indorse- 
ment. 

Sec.  106.  But  in  case  of  a  waiver  after  indorse- 
ment, the  courts  have  not  been  harmonious  as  to  the 
necessity  of  a  new  consideration  for  the  waiver  in 
cases  where  the  question  has  been  raised.  It  is  no- 
ticeable, however,  that  the  matter  of  consideration 
has  seldom  been  brought  before  the  courts  in  this 
connection.  In  case  after  case  the  courts  have  held 
an  indorser,  who  has  been  released  by  the  laches  of 
the  holder,  to  resumption  of  liability  by  his  volun- 
tary act  subsequent  to  his  release,  without  anything 
to  show  that  there  was  a  new  consideration,  and 
without  any  intimation  from  the  courts  that  they 
thought  a  consideration  necessary  or  that  the  liabil- 
ity of  the  indorser  was  effected  by  its  absence. 


62.     Robinson  v.  Barnett,   19  Fla.   670  ;    45  A.  R.   24. 
53.     Souther  v.  McKenna,  20  R.  I.  645;    40  Atl.  736. 


112  THE  LAW  OP  WAIVER 

Sec.  107.  But  it  is  necessary  to  notice  the  cases 
in  which  the  question  has  been  passed  upon.  Thus, 
it  has  been  said  that  a  subsequent  promise  to  pay, 
unless  supported  by  a  consideration,  is  not  binding 
upon  an  indorser  who  has  been  released  by  the 
laches  of  the  holder54.  But  the  decided  weight  of  au- 
thority is  to  the  contrary  of  this,  and  it  is  said  that 
no  consideration  is  necessary  to  make  a  waiver  bind- 
ing55, and  that  whether  upon  the  ground  of  waiver 
or  of  a  moral  obligation  that  forms  a  consideration, 
the  consequence  is  undeniable  that  a  new  promise 
will  sustain  an  action  upon  the  note56. 

Sec.  108.  This  question  of  consideration  was 
fully  discussed  in  a  Pennsylvania  case57  and  the  ref- 
erences therein  made,  and  all  sides  of  the  matter 
looked  into.  It  is  said:  "The  indorser  may  waive 
protest  after  the  date  of  maturity  of  the  note  with 
like  effect  as  if  done  prior  to  that  date58.  In  Barclay 
v.  "Weaver,  this  court  said,  'It  seems,  therefore,  that 


64.     Sebree  Bank  v.  Moreland,  96  Ky.  150;    28  S.  W.  163;    29  L.  R. 
A.  305. 

See:    Peabody  v.  Harvey,  4  Conn.  119;    10  A.  D.  103. 

Merrimack  Bank  v.  Brown,  12  N.  H.  320. 

White  v.  Keith,  97  Ala.  668;    12  So.  611. 
55.     Delsman  v.  Friedlander,  40  Oreg.  33  ;    66  Pac.  297. 

Matthews  v.  Allen,  16  Gray  594;    77  A.  D.  430. 

Morgan  v.  Peet,  32  111.  281. 

Lockwood  v.  Bock,  50  Minn.  142  ;    52  N.  W.  391. 

Woodman  v.  Eastman,  10  N.  H.  359. 

Ross  v.  Hurd,  71  N.  Y.  14  ;    27  A.  R.  1. 

Tate  v.  Sullivan,  30  Md.  472  ;    96  A.  D.  597. 

Porter  v.  Hodenpuyl,  9  Mich.  11. 

66.  Brooklyn  Bank  v.  Waring,  2  Sandf.  Ch.  1 ;    7  L.  Ed.  481. 
U.  S.  Bank  v.  Southard,  17  JT.  J.  L.  473 ;    35  A.  D.  521. 
Harrison  v.  Bailey,  99  Mass.  620;    97  A.  D.  63. 

Uhler  v.  Farmers  Bank,  64  Pa.  St.  406. 

67.  Burgettstown  Bank  v.  Nill,  213  Pa.  St.  456;    63  Atl.  186. 
Cited  In  Joyce  on  Def.  to  Com.  Paper,  538. 

68.  Barclay  v.  Weaver,  19  Pa.  St.  396;    57  A.  D.  661. 


BILLS  AND  NOTES  113 

the  duty  of  demand  and  notice,  in  order  to  hold  an 
indorser,  is  not  a  part  of  the  contract  but  a  step  in 
the  legal  remedy  that  may  be  waived  at  any  time  in 
accordance  with  the  maxim  Quilibet  potest  renuib- 
ciare  juri  pro  se  introducto.'  In  some  jurisdictions 
it  is  held  that  the  waiver,  when  made  after  maturity 
of  the  note,  must  be  made  with  full  knowledge  of  the 
holder's  laches  and  that  it  requires  a  new  consider- 
ation. But  it  is  settled  by  numerous  American  au- 
thorities that  a  waiver  of  protest  need  not  be  sup- 
ported by  a  new  consideration59.  We  know  of  no  de- 
cision in  this  court  holding  that  such  waiver  must  be 
supported  by  a  new  consideration.  The  contrary  rule, 
however,  is  distinctly  recognized  in  Barclay  v.  Wea- 
ver, supra.  In  that  case  Mr.  Justice  Lowrie,  in  con- 
struing the  contract  of  an  indorser  of  negotiable 
paper,  says :  '  The  most,  therefore,  that  can  be  said 
of  an  indorsement  of  negotiable  paper  is  that  from 
it  there  is  implied  a  contract  to  pay  on  condition  of 
the  usual  demand  and  notice ;  and  that  this  implica- 
tion is  liable  to  be  changed  on  the  appearance  of 
circumstances  inconsistent  with  it,  whether  those  cir- 
cumstances be  shown  orally  or  in  writing.  But  it 
may  well  be  questioned  whether  the  condition  of  de- 
mand and  notice  is  truly  part  of  the  contract  or  only 
a  step  in  the  legal  remedy  upon  it.  If  it  is  a  part  of 
the  contract,  how  can  it  be  effectually  dispensed  with 
without  a  new  contract  for  a  sufficient  consideration, 


If.     Neal  v.  Wood,  23  Ind.  523. 
Hu«h«s  v.  Bowen,  15  la.  446. 
Cheshire  r.  Taylor.  29  la.  492. 
SK^KSon  v,  Hornton,    (N.  T.)  ;  3  A.   R   ««•. 
Tebbetts  v.  Dowd,  23  Wend.  379. 
Wall  v.  Bry.  1  La.  Ann.  312. 
Lane  v.  Steward,  20  Me.  91. 


114  THE  LAW  OF  WAIVER 

especially  after  maturity  of  the  note?  Yet,  there  are 
decisions  without  number  that  a  waiver  of  it  during 
the  currency  or  after  the  maturity  of  the  note  will 
save  from  the  consequences  of  its  omission.  This 
could  not  be  if  it  was  a  condition  of  the  contract  for 
then  the  omission  of  it  would  discharge  the  indorser 
both  morally  and  legally ;  and  no  new  promise  after- 
wards, even  with  full  knowledge  of  the  facts,  could 
be  of  any  validity.  If,  however,  an  indorsement 
without  any  other  circumstances  be  regarded  as  an 
implied  promise  to  pay  provided  the  holder  use  such 
diligence  that  the  indorser  loses  nothing  by  his  neg- 
ligence or  indulgence,  then  it  accords  with  all  these 
decisions.  Then  the  law  and  not  the  contract  de- 
clares the  usual  demand  and  notice  to  be  in  all  cases 
conclusive  and  in  some  cases  necessary  evidence  of 
such  diligence  *  *  *  *.  It  (the  law),  there- 

fore, is  perfectly  consistent  in  declaring  that  an  in- 
dorser is  bound  by  a  new  promise,  after  he  knows 
of  the  omission  of  demand  aiid  notice,  for  this  is  an 
admission  that  he  was  not  entitled  to  it,  or  has  not 
suffered  for  want  of  it.  It  declares  demand  and  no- 
tice necessary  in  some  cases  to  save  the  indorser 
from  loss,  and  it  declares  that  his  own  admissions 
may  be  submitted  for  them.'  It  is  manifest,  there- 
fore, that  from  the  nature  of  the  indorser 's  contract, 
a  new  consideration  is  not  required  to  sup-port  a 
waiver  of  protest  before  or  after  maturity  of  the 
paper. ' ' 

6.  WHETHER  WAIVER  IS  WITHIN  STAT- 
UTE OF  FRAUDS:— Sec.  109.  In  some  cases  the 
question  has  arisen  as  to  whether  an  agreement  to 
waive  presentment,  protest  and  notice,  and  a  promise 
to  pay  after  knowledge  of  the  laches  of  the  holder  in 


BILLS  AND  NOTES  115 

regard  to  these  legal  steps  amounting  to  a  waiver 
are  not  promises  to  answer  for  the  debt  or  default 
of  another,  and,  therefore,  within  the  statute  of 
frauds.  The  better  opinion  is  that  the  statute  of 
frauds  does  not  enter  into  the  waiver  and  that  it  or 
the  promise  constituting  it  is  valid  though  not  in 
writing60.  Different  reasons  are  given  for  this.  In 
one  instance  it  was  said  that  the  indorser  does  not 
make  a  new  promise  within  the  statute  of  frauds 
when  he  promises  to  pay  after  laches  on  the  part  of 
the  holder,  because  the  debt  is  his  own  as  well  as 
that  of  the  maker61.  And,  again,  it  is  said  that  a 
waiver  of  demand  and  notice  made  by  an  indorser 
is  not  a  new  contract  but  only  a  waiver  absolutely  or 
in  part  of  a  condition  precedent  to  his  liability62. 

7.  EXTENT  OF  WAIVER:— Sec.  110.  A 
waiver  of  presentment  is  a  waiver  of  notice,  as  the 
notice,  being  subsequent  and  dependent  upon  pre- 
sentment, must,  by  such  waiver,  necessarily  be  dis- 
pensed with63.  And  a  waiver  of  protest  is  a  waiver 
of  presentment  and  notice  of  dishonor64.  So,  it  is 
said  that  a  waiver  of  presentment  is  a  waiver  of  all 
legal  steps  otherwise  required  to  charge  an  in- 
dorser65. 


60.  U.  S.  Bank  v.  Southard,  17  N.  J.  L.  473  ;    35  A.  D.  521. 
Harrison  v.  Bailey,  99  Mass.  620 ;    97  A.  D.  63. 

61.  Uhler  v.  Farmers  Bank,  64  Pa.  St.  406. 

62.  Worden  v.  Mitchell,  7  Wis.  161. 

63.  Furth  v.  Baxter,  24  Wash.  608 ;    64  Pac.  798. 

64.  Baker  v.  Scott,  29  Kans.  136;    44  A.  R.  628. 

San  Diego  Bank  v.  Falkenham,  94  Gal.  141 ;    29  Pac.  866. 

Bradley  v.  Asher,  65  Mo.  App.  589. 

Timberlake  v.  Thayer,  76  Miss.  76 ;    23  So.  767. 

65.  Hammet  i>.  Trueworthy,  51  Mo.  App.  281. 


116  THE  LAW  OF  WAIVER 

Sec.  111.  Where  an  indorser  signs  a  note  under 
a  waiver  written  on  the  back  thereof,  he  makes  the 
waiver  his,  and  is  bound  thereby66.  And  the  same  is 
true  of  all  subsequent  indorsers67;  although  it  lias 
been  said  that  a  waiver  of  notice  written  above  an 
indorser 's  signature  binds  him  only68,  and  that 
where  an  indorser  has  written  a  waiver  over  his  sig- 
nature, no  other  party  to  the  instrument  is  bound  by 
it  unless  he  expressly  adopts  it  as  his  own69. 

66.  Farmers  Bank  v.  Mining  Co.,  129  Cal.  263 ;    61  Pac.  107T. 
Parshley  v.  Heath.   69  Me.   90;    31  A.  R.  246. 

67.  Id. 

68.  Joyce,  Defenses  to  Commercial  Paper,  573. 

69.  Halley  v.  Jackson,  48  Md.  254. 

Jackson  Bank  v.  Irons,  18  R.  I.  718;    30  Atl.   420. 
Woodman  v.  Thurston,  8  Gush.  157. 


MORTGAGES  117 


CHAPTER  4. 

MORTGAGES. 

1.  CHATTEL  MORTGAGES — 

Section 

A.  Waiver  of  the  Lien  by  Attachment 112 

B.  By  Execution 116 

C.  By  Other  Acts  of  the  Mortgagee 117 

2.  LftEAL  ESTATE  MORTGAGES — 

A.  Waiver  of  the  Lien — 

(1)  By  Suit  or  Judgment  on  Note 118 

(2)  Levy     of    Execution     on     Mortgaged 
Premises  to  Satisfy  Mortgage  Debt.  ...  120 

(3)  Taking     Other    Security;     Attaching 
Mortgaged  Property,  etc 126 

(4)  Waiver  of  Priority 129 

B.  Waiver  in  Foreclosures — 

(l)Breach  of  Mortgage  Conditions 131 

(a)     Non-payment  of  interest 132 

Ob)     Non-ipayment  of  taxes,  insurance 
or  installments  of  principal 135 

(2)  Waiver  of  Entry  to  Foreclose 137 

(3)  Waiver  of  Foreclosure  Sale 141 

(4)  Waiver  of  Right  to  Set  Aside  Sale — 

(a)  By  laches  or  delays 143 

(b)  Effect  of  redemption 145 

(c)  Other  conduct  constituting  waiver  146 

1.     CHATTEL  MORTGAGES. 

A.  WAIVER  OF  THE  LIEN  BY  ATTACH- 
MENT :— Sec.  112.  The  weight  of  authority  is  to  the 
effect  that  a  mortgagee  of  personal  property  who 
attaches  the  mortgaged  property  in  an  action  for  the 
debt  which  is  secured  therdby  waives  the  lien  of  his 
mortgage70.  The  reason  is  that  when  an  attachment 
is  issued  a  lien  is  created  which  is  entirely  inconsist- 


70.     Evans  v.  Warren.   122  Mass.   303. 
Jones,  Chat.  Mortg.  Sec.  665. 
Cochrane  v.  Rich,  142  Mass.  15 ;    6  N.  E.  781. 


118  THE  LAW  OF  WAIVER 

ent  with  and  different  from  the  lien  of  the  mortgage, 
and  that  by  electing  to  pursue  one  lien  the  other  is 
waived.  Further,  the  mortgagor  has  no  attachable 
interest  in  the  property  so  long  as  the  mortgage  ex- 
ists, as  the  legal  title  is  in  the  mortgagee  subject  to 
the  equity  of  redemption  still  remaining  to  the  mort- 
gagor, which  is  not  attachable  except  under  statu- 
tory provision  therefor71. 

Sec.  113.  And  this  rule  holds  good  whether  or 
not  the  attaching  plaintiff  knew  that  the  property 
attached  was  the  same  as  that  covered  by  the  mort- 
gage and  where  he  persisted  to  judgment  with  the 
attachment72.  So,  where  a  creditor  brings  suit 
against  his  debtor  and  sues  out  a  writ  of  attachment, 
but  before  levying  the  same  learns  that  the  debtor's 
property  is  covered  by  a  chattel  mortgage,  and  upon 
receiving  such  information  buys  the  mortgage  debt 
and  has  the  mortgage  assigned  to  himself,  and  there- 
after causes  such  property  to  be  seized  under  the  at- 
tachment, he  thereby  waives  his  lien  under  the  chat- 
tel mortgage;  and  in  case  the  attachment  is  dis- 
charged the  creditor  cannot  maintain  replevin  to  re- 
cover possession  of  the  property  so  as  to  foreclose  his 
mortgage,  for  the  reason  that  the  mortgage  lien  is 
waived  by  the  attachment  of  the  property  covered 
thereby73. 


71.  Evans  v.  Warren,  supra. 

Cox  v.  Harris.  64  Ark.  213  ;  41  S.  W.  426  ;  62  A.  S.  R.  187. 
Whitney  v.  Farrar.  51  Me.  418. 

Dyckman  v.  Sevatson,  39  Minn.  132  ;    39  N.  W.  73. 
Jennings  v.  McElroy,  42  Ark.  236;    48  A.  R.  61. 

72.  Cox  v.  Harris,  supra. 

73.  !Dix  v.  Smith.  9  Okla.  124 ;  60  Pac.  303 ;  50  L.  R.  A.  714. 


MOETGAGES  119 

Sec.  114.  The  effect  of  the  attachment  by  the 
mortgagee  is  the  same  whether  the  attachment  is  for 
the  debt  secured  by  the  mortgage,  or  for  an  entirely 
different  one ;  for  the  like  reasoning  applies  in  that 
the  two  liens  are  inconsistent  and  cannot  be  pursued 
at  the  same  time74.  For  it  has  been  said  that  'by  levy- 
ing the  writ  of  attachment  the  mortgagee  puts  the 
property  into  the  custody  of  the  law,  and  it  would 
be  inequitable  to  permit  him  to  set  up  his  mortgage 
to  defeat  the  custody  of  the  law  after  another  credi- 
tor has  procured  a  subsequent  attachment  against 
the  same  property75.  So,  if  the  mortgagee  give  a 
receipt  to  the  attaching  officer78,  or  accept  the  trust 
as  keeper  of  the  property  after  it  has  been  attached 
'by  another  creditor77,  he  cannot  avoid  liability  by 
showing  that  his  claim  exceeds  the  value  of  the  prop- 
erty, or  that  the  attachment  lien  was  lost  by  any  act 
of  his. 

Sec.  115.  Some  cases,  however,  hold  opposite 
to  the  foregoing  and  declare  the  mortgage  lien  not 
waived  by  an  attachment  as  in  the  cases  hereinbe- 
fore referred  to78.  But  the  better  reasoning  is  in 
support  of  the  other  doctrine. 

B.  BY  EXECUTION:— Sec.  116.  Where  a 
mortgagee  obtained  a  judgment  against  the  mortga- 
gor for  the  mortgage  debt  and  caused  execution  to 


74.  Haynes  v.  Sanborn,  45  N.  H.  429. 
MX  v.  Smith,  supra. 

75.  Cobbey,  Chat.  Mortg.  Sec.  746. 

76.  Drew  v.  Livermore,  40  Me.  266. 

77.  Mores!  v.  Swift,  15  Nev.  215,  cited  in  Cobbey,  Chat.  Mortg.  Seo. 

746. 

78.  Bryam  v.   Stout,   127   Ind.   196;     26   N.   E.   687. 
•Webster,  etc.  Co.  v.  Losey,  108  la.  687 ;    78  N.  W.  78. 


120  THE  LAW  OF  WAIVEB 

be  levied  on  the  property  covered,  the  mortgagor 
brought  an  action  of  trespass  against  the  mortgagee 
and  the  officer  who  sold  the  'property  under  execu- 
tion, and  the  court  held  that  the  lien  of  the  mortgage 
had  been  waived  'by  the  execution  and  that  the  mort- 
gage was  no  defense  to  the  action  of  trespass79.  This 
doctrine,  too,  is  based  upon  the  proposition  that  title 
to  the  mortgaged  property  is  in  the  mortgagee  and 
that  by  the  levy  of  execution  he  forbears  to  exercise 
his  right  created  by  such  title  and  reinvests  title  in 
the  mortgagor  so  as  to  defeat  the  lien  of  the  mort- 
gage80. But  if  a  portion  of  the  property  has  been  set 
off  to  the  debtor  as  exempt,  it  has  been  held  that  the 
levy  of  execution  does  not  waive  the  mortgage  lien 
on  that  portion  so  set  aside  as  exempt81. 

But  no  such  waiver  occurs  by  levy  of  execution 
where  the  levy  is  abandoned  and  the  goods  returned 
to  the  mortgagor ;  and  the  doctrine  of  waiver  of  the 
mortgage  lien  by  issuance  and  levy  of  execution  and 
sale  of  the  mortgaged  property  thereunder  has  been 
denied  entirely82. 

O.  BY  OTHER  ACTS  OF  THE  MORTGA- 
GEE : — Sec.  117.  If  a  mortgagee  of  chattels  author- 
izes his  agent  to  sell  the  mortgaged  property  and  de- 
posit the  proceeds  in  a  bank  to  be  applied  on  the 
mortgage  debt,  and  a  sale  is  made  under  such  au- 
thorization, the  lien  of  the  mortgage  does  not  attach 


79.  Kimball  v.  Marshall,  8  N.  H.  291. 

80.  Thurber  v.  Jewett,  3  Mich.  295. 
Exline  v.  Lowery,  46  la.  556. 
Woolner  v.  Levy,  48  Mo.  App.  469. 

81.  Barchard  v.  Kohn,   157  111.  App.   579;     41   N.   B.   902;    29  L,.  R. 

A.  803. 

82.  Conway  v.  Wilson,  44  N.  J.  Eq.  457 ;    11  Atl.  734. 


MORTGAGES  121 

to  the  proceeds  and  they  are  subject  to  attachment 
by  other  creditors  of  the  mortgagor83 ;  or  if  one  hold- 
ing a  chattel  mortgage  authorize  the  mortgagor  to 
sell  the  property  at  private  sale,  and  a  sale  is  made, 
such  facts  operate  as  an  implied  waiver  of  the  mort- 
gage lien  whereby  the  mortgage  is  defeated84.  And 
if  the  mortgagee  authorize  a  sale  of  part  of  the  mort- 
gaged property,  his  lien  is  waived  as  to  the  part  sold, 
but  not  as  to  the  other85. 

But  it  has  been  held  that  the  mortgagee  does  not 
waive  his  lien  under  the  mortgage  by  remaining  si- 
lent when  informed  that  part  of  the  property  had 
been  disposed  of  by  the  mortgagor86,  nor  even  by 
failing  to  speak  when  the  transfer  was  executed  and 
read  in  his  presence87 ;  as  in  such  case  he  must  ex- 
pressly authorize  such  transfer  or  his  lien  is  not 
waived.  So,  the  receipt  by  a  mortgagee  of  part  of  a 
mortgage  deibt  from  a  decedent's  estate  is  not  a 
waiver  of  the  mortgage  lien  as  to  the  balance,  even 
though  the  whole  de'bt  was  proved  against  the 
estate88. 


83.  Maier  v.  Freeman,  112  Cal.  8  ;    44  Pac.  357 ;    53  A.  S.  R.  151. 

84.  Peterson  v.  St.  Anthony  Co.,  9  N.  Dak.  55;    81  N.  W.  59;    81  A, 

S.  R.  528,  citing: 

Hogan  v.  Atl.  Elev.  Co.,   66  Minn.   344;    69  N.  W.  1. 
Roberts  v.  Crawford,  54  N.  H.  532. 

85.  Bamet  v.  Fergus,  51  111.  352;    99  A.  D.  547. 
Ogden  v.  Stewart,  29  111.  124. 

Patterson  v.  Taylor,   15  Fla.   336. 

86.  Patterson  v.  Taylor,  supra. 

87.  Rlley  v.  Conner,  79  Mich.  497  ;    44  N.  W.  1040. 

88.  Schuelenburg  v.  Martin,  11  McCrary,  548 ;    2  Fed,  747. 


122  THE  LAW  OF  WAIVER 

2.   REAL  ESTATE  MORTGAGES. 

A.    WAIVER  OF  THE  LIEN— 

(1)  BY  SUIT  OE  JUDGMENT  ON  NOTE  :— 
Sec.  118.  In  dealing  with  waivers  of  the  lien  of  a 
mortgage  on  realty,  it  is  well  to  remember  that  the 
mortgage  does  not  secure  a  note  or  bond,  'but  that  it 
secures  an  indebtedness  of  which  the  note  or  'bond  is 
evidence ;  and  that  the  lien  of  the  mortgage  is  not  dis- 
charged or  lessened  by  any  change  or  modification  of 
the  form  of  the  indebtedness  or  in  the  time  of  its 
payment,  but  continues  till  the  debt  is  paid  or  ex- 
pressly discharged  or  the  security  abandoned  in  one 
of  the  modes  to  be  pointed  out  in  the  succeeding 
pages. 

Sec.  119.  A  mortgagee  of  realty  has  several 
remedies  which  he  may  pursue  at  his  election  for  col- 
lection of  the  debt  secured,  and  subject  to  a  few  ex- 
ceptional instances,  he  may  attempt  one  method,  and 
if  that  fail  he  will  not  thereby  be  barred  from  his 
right  to  proceed  according  to  another.  Thus,  he  may 
recover  a  judgment  upon  the  secured  debt  at  law,  and 
such  will  not  constitute  a  waiver  of  his  mortgage 
lien,  and  if  he  fail  to  realize  on  his  judgment  he  may 
maintain  foreclosure  proceedings  on  the  mortgage89. 

89.     Jones,  Mortg.  Sec.  924. 

Cullum  v.  Bank,  23  Ala.  797 ;    37  A.  D.  725. 

Oliphant  v.  Eckerly,  36  Ark.  69. 

Bolles  v.  Chauncey,  8  Conn.  389. 

Citizens  Bank  v.  Dayton    116  111.  267;  4  N.  E.  492. 

Pouder  v.  Ritzinger,  102  Ind    571 ;    1  N.  E.  44. 

Heively  v.  Matteson,  54  la.  505;    6  N.  W.  732. 

Parkhurst  v.  Cammings,  56  Me.  155. 

Sledge  v.  Obenchaln,  58  Miss.  670. 

Bank  of  Utlca  v.  Finch,  3  Barb.  293 ;    49  A.  D.  175. 

Nightingale  v.  Chaffee,  11  R.  I.  609. 

Stimpson  v.  Bishop,  82  Va.  190. 

Taber  v.  Hamlin,  97  Mass.  489  ;    93  A.  D.  113. 

Bunker  v.  Barren,  79  Me.  62;    8  Atl.  253;    1  A.  S.  R.  282. 


MORTGAGES  123 

Such  actions  are,  of  course,  different,  as  one  is  a  per- 
sonal and  the  other  a  real  action,  but  they  are  not  so 
inconsistent  as  to  make  an  election  to  proceed  with 
one  a  waiver  of  the  other90.  And  if  an  execution  be 
issued  upon  the  judgment,  the  lien  of  the  mortgage 
continues  till  the  execution  is  satisfied.  The  same 
is  true  where  the  judgment  is  for  only  a  part  of  the 
secured  debt  or  for  only  a  part  of  the  secured  notes91. 

(2)  LEVY  OF  EXECUTION  ON  MORT- 
GAGED PREMISES  TO  SATISFY  MORTGAGE 
DEBT : — Sec.  120.  It  has  been  seen  from  the  above 
that  the  mortgagee  may  secure  a  judgment  on  the 
mortgage  debt  without  reference  to  the  mortgage. 
But  there  is  a  decided  contrariety  of  opinion  among 
the  courts  as  to  the  right  of  a  mortgagee  to  levy  ex- 
ecution upon  the  mortgaged  premises  and  sell  same 
for  the  mortgage  debt,  and  the  effect  to  be  given  such 
sale  if  made. 

Sec.  121.  On  the  one  hand,  it  is  said  that  a 
mortgagee  cannot  upon  a  judgment  recovered  for  the 
mortgage  debt  levy  an  execution  therefor  upon  the 
mortgaged  premises92.  It  is  well  to  be  remembered 

90.  Priest  v.  Wheelock,  58  111.  114. 
Darst  v.  Bates,  51  111.  439. 
Jenkinson  v.  Ewing,  17  Ind.  505. 
Thornton  v.  Pigs,  24  Mo.  249. 

Lalane  v.  Payne,  42  La.  Ann.  152;    7  So.  481. 
Torrey  v.  Cook,  116  Mass.  163. 
Shearer  v.  Mills,  35  la.  499. 
Flanagan  v.  Westcott,  11  N.  J.  Eq.  284. 
Cissna  v.  Haines,  18  Ind.  496. 

91.  Applegate  v.  Mason,  13  Ind.  75. 
Brumagin  v.  Chew,  37  Ala.  354. 

Kempner  v.  Comer,  73  Tex.  196;    11  S.  W.  194. 
»2.     Powell  v.  Williams,  14  Ala.  476;    48  A.  D.  105. 
Barker  v.  Bell,  37  Ala.  354. 
Young  v.  Ruth,  55  Mo.  515. 
Carpenter  v.  Bowen,  42  Miss.  28. 
Washburn  v.  Goodwin,  17  Pick.  137. 


124  THE  LAW  OF  WAIVEB 

in  this  connection  that  there  is  a  distinction  between 
a  levy  of  execution  upon  the  mortgaged  premises,, 
and  a  levy  upon  the  mortgagor's  interest  or  equity 
of  redemption  therein.  In  some  states  such  sale  of 
the  equity  of  redemption  is  prohibited  by  statute9*. 
And  in  California  it  is  .provided  that  an  action  to 
foreclose  the  mortgage  is  the  only  method  allowed 
for  the  recovery  of  the  mortgage  debt.  So  there  the 
question  does  not  arise.  It  may  readily  'be  seen  that 
the  courts  have  no  high  regard  for  the  proposition 
of  selling  the  redeeming  interest  of  the  mortgagor 
for  the  mortgage  debt;  and  even  where  such  sale  is 
sanctioned  at  all  the  greatest  safe-guard  possible  is 
thrown  around  the  mortgagor  to  prevent  the  working 
of  injustice94.  But  it  was  said  in  an  early  New  York 
case  that  "the  creditor  who  takes  a  mortgage  to  se- 
cure an  indebtedness  by  bond  or  otherwise  has  three 
remedies,  either  of  which  he  may  pursue  or  all  of 
which  he  may  pursue  until  his  debt  is  satisfied.  He 
may  bring  an  action  of  debt  upon  the  bond,  or  he 
may  put  himself  in  possession  of  the  rents  and  pro- 
fits of  the  land  mortgaged,  or  he  may  foreclose  the 
equity  of  redemption  and  sell  the  land  to  satisfy 
the  debt.  In  this  case  the  creditor  sues  on  the  bond 
and  obtains  judgment  and  execution,  and  the  execu- 
tion strictly  reaches  only  to  the  remaining  interest 
of  the  mortgagor  in  the  land.  It  reaches  only  to  the 
equity  of  redemption"95.  This  doctrine  was  later 

93.  Deleplalne  v.  Hitchcock,  6  Hill  14   (N.  Y.). 
Preston  v.  Ryan,  45  Mich.  174. 

Mitchell  v.  Rlngle,  151  Ind.  16;    50  N.  E.  30;    68  A.  S.  R.  212. 

94.  Simpson  v.  Simpson,  93  N.  Car.  373. 
Baldwin  v.  Jenkins,  23  Miss.  206. 
Bonnell  v.  Henry,  13  How.  Pr.   142. 
Preston  v.  Ryan,  45  Mich.  174. 

95.  Jackson  v.  Hull,  10  Johns.  481  (N.  Y.). 


MORTGAGES  126 

(Criticised  in  the  same  state96,  and  thereafter  a  stat- 
ute enacted  prohibiting  such  sales97.  And  many 
other  authorities  hold  that  the  equity  of  redemption 
of  the  mortgagor  cannot  'be  sold  on  execution  issued 
upon  a  judgment  for  the  mortgagee  debt98. 

Sec.  122.  But  there  is  a  rule  'better  than  either 
of  those  above  adverted  to,  producing  justice  equally 
to  the  mortgagor  and  the  mortgagee.  The  rule  is 
that  a  mortgagee  may  sue  the  mortgagor  at  law  for 
the  mortgage  debt,  procure  judgment  therefor,  ob- 
tain execution,  levy  same  upon  the  mortgaged  premi- 
ses and  conduct  the  proceedings  to  s-ale  as  in  other 
cases  under  execution.  But  in  such  action  the  mort- 
gagee waives  the  lien  of  his  mortgage  and  is  barred 
by  his  own  act  from  further  proceeding  under  it. 
The  reasons  for  this  rule  have  been  clearly  stated: 
"The  debt  is  the  principal  thing.  The  mortgage  is 
designed  to  secure  the  ultimate  payment  of  it  to  the 
creditor.  But  if  he  pleases  to  waive  that  security 
and  proceed  to  collect  the  debt  in  the  ordinary  pro- 
cess of  the  law,  it  is  not  for  the  debtor  to  complain. 
He  is  subjected  to  no  illegal  burden.  The  accepting 
a  mortgage  does  not  impose  upon  the  creditor  the  ne- 
cessity of  giving  credit  for  the  term  of  three  years 
beyond  that  stipulated  for  in  the  principal  contract. 
The  relation  of  the  parties  is  changed  by  the  levy. 
The  levying  creditor  can  no  longer  be  considered  en- 


96.  Tice  v.  Annin,  2  Johns.  Ch.  125. 

97.  N.  Y    Code  Civ.  Proc.   1877,  Sec.  1432. 

98.  Myrover  v.  French,  73  N.  Car.   609. 
MoNair  v.  O'Fallon,  8  Mo.  188. 
Davis  v.  Hamilton,  50  Miss.  218. 
Funk  v.  McReynold.  33  111.  49«. 
Crane  v.  March,  4  Pick.  131. 


126  THE  LAW  OF  WAIVER 

titled  under  his  mortgage.  He  is  to  foe  considered 
as  holding  nnder  his  levy,  and  his  title  must  depend 
upon  the  regularity  of  his  proceedings.  He  can 
claim  no  priority  over  other  attaching  creditors  or 
intervening  incumbrancers  'by  reason  of  Ms  mort- 
gage"99. 

Sec.  123.  This  doctrine  has  been  regarded  as 
providing  another  method  of  foreclosing  the  mort- 
gage with  the  same  rights  of  redemption  as  in  ordi- 
nary foreclosures100.  But  it  is  not  a  summary  meth- 
od of  foreclosure.  The  lien  of  the  mortgage  is  a 
right  existing  to  the  mortgagee  the  same  as  any 
other  contractual  right,  and  this  he  has  the  right  of 
insisting  upon  or  waiving  as  he  may  choose.  Pur- 
suing a  course  of  conduct  inconsistent  with  an  in- 
tention to  rely  upon  the  lien  is  a  waiver  of  it.  So  that 
causing  the  mortgaged  property  to  be  levied  upon 
and  sold  under  execution  on  a  judgment  for  the 
mortgage  debt  is  a  voluntary  abandonment  of 
the  mortgage  lien  or  a  waiver  thereof,  and  will  ipso 
facto  discharge  the  mortgage,  and  the  purchaser 
takes  the  premises  freed  from  the  mortgage  lien1.  To 
deny  the  mortgagee  the  right  to  so  waive  his  mort- 
gage lien  would  be  to  deny  him  the  privilege  of  fore- 
going a  benefit  inuring  solely  to  himself,  a  restric- 
tion unknown  to  any  other  class  of  contracts2. 


99.     Crooker  v.  Frazier,  52  Me.  405. 
100.     Cottingham  v.  Springer,   88  111.   90. 
Sharts  v.  Await,  73  Ind.  304. 

1.  Freeby  v.  Tupper,  15  Oh.  467. 
Pierce  v.  Potter,  7  Watts  475. 

Fosdlck  v.  Risk,  15  Oh.  84  ;    45  A.  D.  562. 
Lord  v.  Crowell,  75  Me.  399. 

2.  Flthlan  t>.  Corwln,  17  Oh.  St.  118. 
McLure  v.  Wheeler,   6  Rich.  Eq.   343. 


MORTGAGES  127 

Stec.  124.  Even  in  those  states  denying  a  mort- 
gagee the  right  to  levy  upon  and  sell  the  mortgaged 
premises  upon  an  execution  issued  on  a  judgment 
for  the  mortgage  debt,  it  said  that  the  mortgagor's 
equity  of  redemption  may  be  levied  upon  and  sold 
for  another  debt  in  favor  of  the  mortgagee  other 
than  the  mortgage  debt3.  It  is  hard  to  understand 
why  the  levy  and  sale  should  be  allowed  without  af- 
fecting the  mortgage  lien  if  the  mortgagee  is  not  to 
be  permitted  to  waive  the  mortgage  lien  and  proceed 
against  the  premises  the  same  as  any  other  creditor. 

And  it  is  held  in  those  states  where  statutory 
provisions  prohibit  a  sale  of  the  equity  of  redemp- 
tion on  execution  for  the  mortgage  debt,  that  such 
execution  may  be  levied  upon  any  other  property  of 
the  mortgagor4,  in  effect  a  holding  that  the  mortga- 
gee may  abandon  his  lien  for  the  purpose  of  proceed- 
ing against  other  property  of  the  mortgagor,  but 
prohibiting  his  waiver  of  the  lien  in  order  to  proceed 
otherwise  against  the  particular  property  mort- 
gaged. 

(3)  TAKING  OTHER  SECURITY,  AT- 
TACHING MORTGAGED  PROPERTY,  ETC.  :- 
Sec.  125.  It  has  herein  been  seen  that  no  indulgence 
of  the  mortgagor  by  the  mortgagee  in  the  way  of 
changing  the  time  or  mode  of  payment  or  the  form 
of  the  debt  is  to  be  construed  as  a  waiver  of  the 
mortgage  lien.  It  remains  the  same  lien  as  to  third 


Gushing  v.  Kurd,  4  Pick.  253  ;    16  A.  D.  335. 
See:    Andrews  v.  Fiske,  101  Mass.  422. 
Roosevelt  v.  Carpenter,  28  Barb.  426. 
Simmons  Hdw.  Co.  v.  Brokaw,  7  Neb.  405. 
Tucker  v.  McDonald,  105  Mass.  423. 


128  THE  LAW  OP  WAIVER 

parties  as  well  as  to  the  mortgagor  through  any  such 
changes,  so  that  even  the  taking  of  a  new  mortgage 
does  not  affect  it  where  the  rights  of  the  original 
mortgagee  are  expressly  reserved5.  And  the  taking 
of  a  second  mortgage  for  the  same  debt  is  not  a 
waiver  of  the  lien  of  the  first6,  nor  is  the  accepting 
of  personal  security7.  So  where  the  mortgagor  con- 
veyed the  legal  title  in  trust  to  pay  a  prior  mortgage, 
the  mortgagee  did  not  waive  his  lien  under  the  mort- 
gage by  accepting  interest  from  the  trustee8.  And, 
unless  there  exist  facts  amounting  to  an  equitable 
estoppel9,  the  lien  will  not  be  waived  by  the  taking 
of  additional  security  of  whatever  character10. 

Sec.  126.  But  the  above  doctrine  must  not  be 
carried  too  far,  for  the  effect  to  be  given  to  such 
transaction  will  be  governed  largely  by  the  intent  of 
the  -parties  as  gathered  from  all  the  circumstances 
surrounding  their  dealings.  Thus,  it  is  said  that  in 
the  absence  of  fraud,  accident  or  mistake  the  release 
of  a  first  mortgage  and  the  acceptance  of  a  second 
in  its  stead  is  a  waiver  of  the  lien  of  the  first  mort- 


6.     Ames  v.  New  Orleans  Co.,  Fed.  Gas.  No.  329. 

6.  Burdett  v.  Clay,  47  Ky.  287   (8  B.  Mon.). 
Heively  v.  Matteson,  54  la.  505  ;    6  N.  W.  732. 
Frulck  v.  Branch,  16  Conn.  260. 

Walter  v.  Walters,  73  Ind.  425. 

Brinkerhoff  v.  Lansing,  4  Johns.  Ch.  65  ;    8  A.  D.  511. 

Geib  v.  Reynolds,  35  Minn.  331;    28  N.  W.  923. 

7.  Id. 

8.  Nelson  v.  Radliff,  72  Miss.  656 ;    18  So.  487. 

9.  Kans.   City  Assoc.   v.  Mastln,    61  Mo.   43S. 
10.     Blrrell  v.  Schle,  9  Cal.  104. 

Bank  v.  Tarleton,  23  Miss.  173. 

Byers  v.  Fowler,   14  Ark.   86. 

Clssna  v.  Haines,  18  Ind.  496. 

Fireman's  Co.  v.  Wilkinson,  35  N.  J.  EQ.  180. 

Flower  v.  Elwood,  66  111.  438. 

N.  H.  Bank  v.  Willard,  10  N.  H.  210. 


MORTGAGES  129 

gage  and  extinguishes  it  forever  as  to  intervening 
claimants11.  And  of  course  an  express  understand- 
ing that  the  taking  of  a  new  mortgage  for  the  same 
debt  shall  have  the  effect  of  a  complete  discharge  of 
the  first  mortgage  will  be  carried  out  according  to 
the  intention  of  the  parties  and  the  prior  lien  will  <be 
held  discharged  or  abandoned12.  It  is  true  that  the 
effect  of  the  transaction  here  being  considered  is  not 
BO  much  to  produce  a  waiver  of  the  mortgage  lien  as 
it  is  to  constitute  a  full  and  complete  payment  of  the 
mortgage  debt,  and  consequently,  a  discharge  and 
satisfaction  of  the  mortgage  securing  it ;  and  yet  all 
of  the  elements  of  a  waiver  are  present:  It  is  the 
voluntary  relinquishment  of  a  known  right  with  an 
intention  that  it  shall  not  be  further  acted  upon. 
There  is  nothing  to  compel  a  mortgagee  to  forego 
the  benefit  of  his  prior  lien.  And  where  he  does  so 
in  order  to  accept  a  second  or  renewal  mortgage  for 
the  same  debt,  he  should  be  held  strictly  to  his  rights 
under  such  second  mortgage  and  not  be  permitted  to 
tie  the  second  mortgage's  string  to  the  first  mort- 
gage's kite.  To  carry  such  a  doctrine  to  its  possible 
limit  would  be  to  produce  a  condition  undesirable  to 
say  the  least ;  for  if  one  renewal  or  second  mortgage 
may  be  taken  by  the  mortgagee  without  his  waiving 
or  abandoning  the  lien  of  his  first  mortgage,  even 
though  the  latter  be  discharged  from  record,  there 
is  no  reason  why  a  third  may  not  be  given,  nor  a 
fourth  nor  any  other  number,  all  relating  back  to  and 


11.  Dlngwian  v.  Randall,  13  Cal.  513. 

Miller  v.  Hlcken,  92  Cal.  229;    28  Pac.  339. 
Richards  v.  Griffith,  92  Cal.  493 ;    28  Pac.  484. 
Anglade  v.  St.  Avit,  67  Mo.  434. 
New  Eng.  Co.  v.  Hirsch,  96  Ala.  232  ;    11  So.  63. 

12.  Boston  Iron  Co.  v.  King,  2  Gush.  400. 


130  THE  LAW  or  WAIVER 

continuing  the  lien  of  the  first  mortgage;  and  in  the 
absence  of  fraud  or  mistake  this  could  not  be  per- 
mitted13. 

Siec.  127.  In  the  absence  of  statutory  regula- 
tion, the  mortgagee  has  several  remedies1  any  one  or 
all  of  which  he  may  pursue,  the  only  condition  being 
that  he  shall  have  but  one  satisfaction  for  the  debt. 
And  so  the  lien  of  the  mortgage  is  not  lost  or  waived 
by  first  bringing  suit  on  the  note  without  reference 
to  the  mortgage.  But  it  is  otherwise  if  in  an  action 
on  the  particular  indebtedness  the  mortgagee  attach 
the  mortgaged  premises.  For  in  such  event  another 
lien  is  established  different  from  and  inconsistent 
with  the  mortgage  lien  which  it  has  supplanted.  We 
are  aware  that  a  different  doctrine  has  been  present- 
ed14, where  it  is  said  that  the  issuing  of  an  attach- 
ment by  the  mortgagee  against  the  mortgagor  on  the 
mortgage  debt  and  the  obtaining  of  a  judgment 
thereunder  is  not  per  se  a  waiver  of  the  mortgage 
lien.  The  contrary  has  been  held,  although  under 
statutory  provision  limiting  the  mortgagee  to  one 
action  for  collection  of  his  mortgage  debt15.  It  oc- 
curs to  us  that  the  latter  is  the  better  doctrine 
whether  provided  for  by  statute  or  not ;  for  the  mort- 


is.    Gardenvllle  v.  Walker.  52  Md.  455. 

Woolen's  Ex'rs.  v.  Hlllen's  Ex'rs.,  9  Gill  185  ;    52  A.  D.  690. 
Wash.  Co.  v.  Slaughter,  54  Ja.  265;    6  N.  W.  291. 
Barnes  v.  Mott,  64  N.  Y.  397  ;    21  A.  R.  625. 
Joyner  v.  Stancill,  108  N.  Car.  153 ;    12  S.  E.  912. 
Stearns  v.  Godfrey,  16  Me.  158. 
Trust  Co.  v.  Farrar,  53  Vt.  542. 

14.  Lanahan  v.  Lawton,  50  N.  J.  Eq.  276;    23  Atl.  476. 
Lydecker  v.  Bogert,  38  N.  J.  Eq.  136. 

U.  S.  Trust  Co.  v.  Lanahan,  50  N.  J.  Eq.  796;    27  Atl.  1032. 

15.  Bacon   v.    Raybould,    4   Utah   357;     10    Pac.    481;     (Aff.    11    Pao. 

570). 
Ladd  v.  Ruggles,  23  Cal.  282. 


MORTGAGES  131 

gagee  should  be  put  to  his  election  whether  he  will 
rely  upon  the  lien  of  his  mortgage  or  the  lien  of  an 
attachment,  and  when  one  method  is  chosen  the  other 
should  :be  held  waived. 

Sec.  128.  Where  a  mortgagee  permits  the  mort- 
gaged property  to  'be  levied  upon  in  another  action 
without  asserting  his  claim  thereto,  it  has  been  held 
that  he  waives  his  lien  as  to  the  purchaser16.  This 
doctrine,  however,  we  are  not  at  liberty  to  accede  to. 
It  is  the  rule,  however,  that  a  mortgagee  may  lose  or 
waive  his  lien  by  such  an  unreasonable  delay  in 
availing  himself  of  the  security  as  to  produce  the  be- 
lief that  he  has  abandoned  it  or  as  to  make  it  in- 
equitable to  permit  him  to  enforce  it17.  But  any  de- 
lay short  of  a  time  when  payment  is  to  be  presumed 
will  not  be  sufficient  to  bar  the  right  to  assert  the 
lien18,  nor,  it  has  been  said,  will  any  delay  short  of 
the  period  provided  by  the  statute  of  limitation  be 
sufficient  as  a  bar  or  waiver19. 

(4)  WAIVER  OF  PRIORITY:— Sec.  129.  As 
hereinbefore  shown,  the  release  of  a  first  mortgage 
and  acceptance  of  a  second  in  its  stead  will,  in  the 
absence  of  fraud  or  mistake,  operate  as  a  waiver  of 
the  lien  of  the  original  mortgage,  and  the  lien  of  the 


18.     Grace  v.  Mercer,  49  Ky.  157. 

17.  Bettis  v.  Allen,  73  Ky.  40. 
Hawkins  v.  Chapman,  36  Md.  83. 

Thompson  v.  Jarvis,  39  Mich.  242  ;    10  N.  W.  469. 
Brown  v.  Becknall,   58  N.  Car.'  423. 

18.  Gibson  v.  Green's  Adm'r.,  89  Va.  524 ;    16  S.  E.  661;    37  A.  S.  R. 

888. 
Blair  v.  St.  Louis  Co..  22  Fed.  471. 

19.  Murto  v.  Lemon,  19  Colo.  App.  314;    76  Pac.  160. 
Dick  v.  Balch,  54  Barb.  455. 

Mason  v.  Phil  brook,  69  Me.  57. 


132  THE  LAW  or  WAIVEB 

second  will  run  only  from  its  execution  and  record- 
ing in  like  manner  as  if  no  prior  mortgage  had  ex- 
isted20. The  effect  of  this  is  to  give  priority  to  an- 
other mortgage  executed  subsequently  to  the  old 
mortgage  'but  prior  to  the  new,  or,  in  other  words,  to 
give  priority  to  an  intervening  incumbrance21. 

Of  course,  a  prior  mortgagee  may,  if  he  choose, 
waive  the  priority  of  his  lien  in  favor  of  a  junior  in- 
cumbrancer22,  and  he  may  do  so  without  destroying 
his  mortgage23.  And  a  waiver  of  priority  may  be 
produced  by  a  course  of  conduct  on  the  part  of  the 
mortgagee  inducing  the  belief  that  such  priority 
would  not  be  insisted  upon  by  him,  or  prejudicing 
the  rights  of  a  junior  incumbrancer  in  such  a  man- 
ner that  it  would  be  unconscionable  to  give  effect  to 
the  priority.  Or  fraud,  concealment,  or  misrepre- 
sentation on  the  part  of  the  senior  mortgagee  may 
have  the  same  effect.  Thus,  if  he  permits  a  second 
mortgagee  to  procure  a  lien  on  the  same  property, 


20.  Frazee  v.  Inslce,  2  N.  J.  Eq.  239. 
Dingman  v.  Randall,  13  Cal.  513. 
Richards  v.  Griffith,  92  Cal.  493  ;    28  Pac.  484. 
Holt  v.  Baker,  58  N.  H.  276. 

Anglade  v.  St.  Avit,  67  Mo.  434. 

Daws  v.  Craig,  62  la.  515;    17  N.  W.  778. 

21.  New  Eng.  Co.  v.  Hirsch,  96  Ala.  232;    11  So.  63. 
Stears  v.  Godfrey,  16  Me.  158. 

Wash.   Co.  v.   Slaughter,   54   la.  265  ;   6  N.  W.  291. 
Trust  Co.  v.  Farrar,  53  Vt.  542. 

22.  Frost  v.  Tonkers  Bank,  70  N.  T.  553  ;    26  A.  R.  627. 
Bank  v.  Moore,   94   N.   Car.   734. 

Mut.  Co.  v.  Sturgls,  33  N.  J.  Eq.  328. 
Clason  v.  Shephers.  6  Wis.  369. 
Darst   v.   Pates,    95    111.    493. 
Loland  v.  Ry.  Co.,  52  Vt.  144. 

23.  Loucks  v.  Union  Bank,  2  La.  Ann.  617. 
Rigler  v.  Light,  90  Pa.  St.  235. 

Lehman  v.  Godberry,  40  La.  Ann. ;    4  So.  816. 

N.  T.  Chem.  Co.  v.  Peck,  6  N.  J.  Eq.  37. 


MOBTGAGES  133 

concealing  his  interests,  he  thereby  waives  the  pri- 
ority of  his  mortgage24.  And  it  is  the  duty  of  one 
holding  a  mortgage  in  the  form  of  a,  deed  to  disclose 
the  true  nature  of  his  security,  if  same  be  inquired 
about,  and  any  false  statement  concerning  same,  or 
concealment  of  material  facts  will  have  the  effect  of 
waiving  the  priority  of  such  mortgage  lien25.  So,  if 
the  mortgagee,  when  interrogated,  states  that  his 
mortgage  has  been  paid,  the  same  result  is  pro- 
duced26. And  if  the  mortgagee  represents  to  a  third 
person  that  the  de'bt  secured  by  his  mortgage  has 
been  paid,  and  such  person  thereupon  releases  an 
attachment  upon  the  goods  of  the  mortgagor  and  ac- 
cepts a  mortgage  on  the  same  land  in  lieu  of  such 
attachment,  the  first  mortgagee,  on  account  of  his 
misrepresentation  as  to  his  mortgage,  will  be  sub- 
ordinated to  the  lien  of  the  second  mortgage27. 

It  is  also  said  that  where  a  mortgagee  holding  a 
first  lien  on  premises  releases  the  mortgagor  from 
personal  liability  on  the  mortgage  debt,  he  thereby 
subordinates  his  lien  to  that  of  a  junior  incum- 
brancer28.  The  reason  given  being  that  such  release 
is  an  impairment  of  the  security  of  the  later  incum- 
brance.  But  we  cannot  agree  with  the  reasoning  nor 
the  results.  The  right  to  hold  the  mortgagor  per- 


24.  Chester  v.  Greer,  24  Tenn.  26. 
Green  v.  Price,  1  Munf.  (Va.)  449. 
Chapman  v.  Hamilton,  19  Ala.  121. 
Tucker  v.  Jackson,  60  N.  H.  214. 

25.  Geary  v.  Porter,  17  Oreg.  465  ;    21  Pac.  442. 

26.  Lasselle  v.  Barnett,  1  Blackf.  150 ;    12  A.  D.  217. 
Newman  v.  Mueller,  16  Neb.  523  ;    20  N.  W    843  * 

27.  Platt  v.  Squire,  53  Mass.  494. 

Freeman  v.  Brown,  96  Ala.  301 ;    11  So.  249 

28.  Sexton  v^Puckett,  24  Wis.  346. 

Armitage  v.  Wickliffe,  12  B.  Mon.  488   (Ky.). 


134  THE  LAW  OF  WAIVER 

sonally  for  the  defbt  is  one  which  may  be  waived  with 
no  other  effect  than  to  limit  the  mortgagee  to  the 
mortgaged  property  for  the  collection  of  his  debt29. 

Sec.  130.  But  a  prior  incumbrancer  who  was 
present  at  the  execution  and  delivery  of  a  subsequent 
mortgage  and  failed  to  disclose  his  interest  docs  not 
waive  the  priority  of  his  mortgagte  if  the  subsequent 
mortgagee  had  actual  or  constructive  notice  of  its  ex- 
istence30 ;  nor  will  the  fact  that  he  witnessed  such 
subsequent  mortgage  produce  such  waiver  where 
there  was  no  fraud  or  deceptive  silence31.  Nor  will 
an  agreement  for  an  extension  of  time  for  payment 
of  the  debt  affect  his  priority32.  And,  generally 
speaking,  to  constitute  a  waiver  of  his  priority,  the 
first  mortgagee  must  be  guilty  of  fraud  or  bad  faith 
or  gross  disregard  for  the  interests  of  third  parties, 
and  his  mere  carelessness  or  silence  will  not  produce 
such  result33. 

B.     WAIVER  IN  FOREiCDOSUiRJES. 

(1)  BREACH  OF  MORTGAGE  CONDI- 
TIONS:— Sec.  131.  Nearly  all  mortgagtes  contain 
conditions  a  breach  of  which  subjects  the  entire  debt 
to  maturity  and  the  mortgage  to  foreclosure  at  the 
option  of  the  mortgagee.  It  is  permissible  for  parties 
to  contract  as  they  please  in  this  regard  and  such 
agreement  will  be  given  effect.  The  usual  provisions 


29.  Baldwin  v.  Norton,  2  Conn.  161. 

30.  Carter  v.  Champion,  8  Conn.  549 ;    21  A.  D.  695. 

31.  Claybaugh  v.  Byerly,  7  Gill   (Md.)   354;    48  A.  D.  575. 
Brlnkerhoff  v.  Lansing,  4  Johns.  Ch.  (N.  Y.)   65;    8  A.  D.  538. 

32.  Whittacre  v.  Fulker,  5  Minn.  508. 

Farmers  Bank  v.  Mut.  Soc.,  4  Leigh  69  (Va.). 

33.  Berry  v.  Mut.  Ins.  Co.,  2  Johns.  Ch.  603. 
Martin  v.  Cent.  Co.,  78  la.  504;    43  N.  W.  301. 


MORTGAGES  135 

are  that  the  mortgagor  shall  promptly  pay  the  in- 
terest, taxes,  insurance  or  installments  of  the  princi- 
pal as  they  become  due,  and  in  default  of  any  such 
payment  the  mortgage  may  be  foreclosed  for  the 
whole  debt  secured.  But  it  is  not  compulsory  that 
the  mortgagee  avail  himself  of  his  right  to  foreclose. 
It  is  a  provision  solely  for  his  benefit,  and  if  he 
choose  he  may  agree  to  waive  any  such  (breach  of  the 
conditions  of  the  mortgage,  or  he  may  so  conduct 
himself  as  to  mislead  the  mortgagor  into  an  honest 
belief  that  this  right  is  not  to  be  insisted  upon,  in 
which  event  a  waiver  of  the  default  will  be  imputed 
to  the  mortgagee. 

(a)  NON-PAYMENT  OF  INTEREST :— Sec. 
132.  Any  act  will  be  sufficient  to  constitute  a  waiver 
of  default  in  non-payment  of  interest  which  is  incon- 
sistent with  a  claim  of  forfeiture34.  Thus,  an  agree- 
ment for  an  extension  of  time  in  which  to  pay  the 
interest,  even  by  parol,  is  sufficient  to  waive  any 
right  to  a  forfeiture  which  might  have  been  incurred 
thereby35.  But  an  acceptance  of  part  of  the  interest 
already  due  does  not  have  such  effect  as  a  waiver36. 
A  waiver  of  forfeiture  was  declared  where  the  con- 
dition of  a  subsequent  mortgage  was  that  interest  on 
the  prior  mortgage  was  to  be  punctually  paid,  and 


34.     Sire  v.  Wightman,  25  N.  J.  Eq.  102. 
$5.     Manning  v.  Tuthtll,  30  N.  J.  Eq.  -29. 

Lawson  v.  Barren,  18  Hun  414. 

Ala.  Co.  v.  Robinson,  56  Fed.  690. 

Moore  v.  Sargent,  112  Ind.  484;    14  N.  E.  466. 
Smalley  v.  Ranken.   85   la.   612;  52  N.  W.  507. 

See:    Mason  v.  Luce,  116  Col.  232;    48  Pac.  72. 

Jacobs  v.  Swift,  8  Kans.  App.  857 ;    5*  Bac.  1127. 

Fulkner  v.  Brockenbrough,  4  Rand.  246    (Va.). 
36.     Smith   v.    Hooton,    3    Pa.    Dist.    250. 


136  THE  LAW  OF  WAIVER 

the  mortgagee  accepted  payment  of  over-due  interest 
before  foreclosure  proceedings  were  started37. 

<Sec.  133.  The  acceptance  of  over-due  interest, 
however,  does  not  waive  the  right  to  declare  a  for- 
feiture for  non-payment  of  an  installment  of  the 
principal38.  And  where  payment  of  several  install- 
ments of  the  interest  was  accepted  by  the  mortgagee 
after  their  maturity,  it  was  held  that  such  did  not 
constitute  a  waiver  of  the  right  to  declare  the  whole 
debt  due  upon  failure  to  promptly  pay  the  interest 
subsequently  falling  due39;  but  such  a  holding  is 
questionable  to  say  the  least,  for  by  his  conduct  the 
mortgagee  has  induced  in  the  mind  of  the  mortgagor 
a  belief  that  the  strict  letter  of  the  (provision  is  not 
to  be  insisted  upon,  and  when  the  latter  has  been 
lulled  into  a  feeling  of  security  in  this  behalf,  the 
former  should  not  be  permitted  to  reap  such  a  bene- 
fit as  the  result  of  his  own  misleading  conduct. 

Sec.  134.  An  acceptance  of  payment  of  a  part 
of  the  principal  is  not  a  waiver  of  the  default  in  non- 
payment of  interest40 ;  nor  would  an  acceptance  of  a 
second  installment  of  interest  waive  a  default  as  to 
the  first  after  foreclosure  proceedings  had  been 
started41 ;  although  it  is  apprehended  that  if  a  mort- 
gagee should  waive  several  such  defaults  the  mort- 
gagor might  safely  presume  that  the  forfeiture  pro- 
vided for  would  not  be  taken  advantage  of  in  a  sum- 
mary manner  but  that  he  would  have  a  reasonable 


37.  Sire  v.  Wigbtman,  25  N.  J.  EQ.  102. 

38.  Northwestern  Co.  v.  Butler,  57  Neb.  198;    77  N.  W.  667. 

39.  Perm.  Hos.  Co.  v.  Gibson,  2  Miles  (Pa.)   324. 

40.  Moore  v.  Sargent,  112  Ind.  484;    14  N.  E.  466. 

41.  Curran  v.  Houston,  201  HI.  442  ;    66  N.  E.  238. 


MORTGAGES  137 

time  after  maturity  to  pay,  as  he  had  on  former  oc- 
casions, even  where  a  waiver  does  not  occur  as  to 
subsequent  installments  of  interest  if  one  default  has 
already  been  waived42.  Simply  notifying  a  mort- 
gagor that  an  installment  of  interest  is  about  due  is 
not  a  waiver  of  default  in  payment  thereof43.  A 
mortgagor  requested  a  few  days  additional  after 
maturity  of  interest  in  which  to  pay  same ;  the  mort- 
gagee waited  three  months  before  exercising  his  op- 
tion to  foreclose;  such  delay  was  held  no  waiver  of 
the  default  in  prompt  payment  of  the  interest  at  its 
maturity44. 

(b)  NON-PAYMENT  OF  TAXES,  INSUR- 
ANCE, OR  INSTALLMENTS  OF  PRINCIPAL:— 
Sec.  135.  Where  the  mortgage  gives  the  mortgagee 
the  right  to  declare  the  debt  due  and  to  foreclose  the 
mortgage  upon  non-payment  of  taxes  on  the  mort- 
gaged premises,  or  insurance  thereon,  the  mortgagee 
waives  the  right  to  declare  a  forfeiture  therefor  un- 
less he  avails  himself  of  the  default  before  it  is 
cured.  For  if  the  mortgagor  pay  the  taxes  or  in- 
surance before  foreclosure  proceedings  are  started, 
the  right  to  foreclose  on  account  of  prompt  payment 
is  lost  to  the  mortgagee45.  In  such  event  it  is  not 
the  payment  that  produces  the  waiver,  as  such  could 
be  induced  only  by  some  act  of  the  mortgagee,  but 
it  is  the  laches  of  the  mortgagee  in  taking  advantage 
of  this  provision  of  the  mortgage.  But  the  mere  fact 
that  the  mortgagee  pays  the  taxes  or  insurance  him- 

42.     Baldwin  Inv.  Co.  v.  Bailey,  45  Neb.  580  ;    63  N.  W.  847. 
PoSt  v.  Industrial  Co.,  34  Atl.  137    (N.  J.). 

43.  Parker  v.  Olllver,  106  Ala.  549 ;  18  So.  40. 

44.  Hewett  v.  Dean,  25  Pac.   753. 

45.     Smalley  v.  Ranken,  85  la.  612 ;    52  N.  W.  507. 
Parker  v.  Olliver,  106  Ala.  549;    18  So.  40. 


138  THE  LAW  OF  WAIVER 

self  will  be  no  bar  to  his  right  to  foreclose48 ;  and  it 
is  held  though  he  fails  to  take  advantage  of  this  pro- 
vision on  the  first  default  this  will  not  constitute  a 
waiver  for  any  subsequent  defaults  of  a  similar 
character47. 

'Sec.  136.  So  where  the  instrument  gives  the 
mortgagee  the  right  to  foreclose  upon  failure  of  the 
mortgagor  to  pay  an  installment  of  the  principal  at  a 
designated  time,  he  waives  the  right  to  a  foreclosure 
by  an  unconditional  acceptance  of  payment  thereof 
after  the  time  limited.  But  it  was  held,  contrary  to 
the  above,  that  acceptance  of  payment  of  one  of  two 
notes  three  days  after  its  maturity  was  no  waiver  by 
the  mortgagee  of  a  provision  giving  him  the  option 
to  declare  both  due  upon  non-payment  of  either  at 
maturity48. 

(2)  WAIVER  OF  EN'TEY  TO  FOEE- 
CLOSE: — Sec.  137.  An  entry  to  foreclose  a  mort- 
gage may  be  made  by  the. mortgagee,  and  such  waiv- 
er may  be  by  the  express  agreement  of  the  parties, 
or  it  may  be  induced  by  any  conduct  or  facts  from 
which  an  agreement  may  be  inferred  or  which  would 
mak,e  it  inequitable  to  give  effect  to  ttie  entry,  or 
which  evidence  an  intention  on  the  part  of  the  mort- 
gagee not  to  insist  on  the  entry  ,and  complete  the 
foreclosure  in  that  way.  Thus,  rreceipt  of  payment 
of  the  mortgage  debt  is  such  a  waiver49,  and  it  has 


46.  Brickell  v.  Batchelder,   62  Cal.   623. 

See:    Rasmussen  v.  Levin,  28  Colo.  448;    65  P,ac.  94. 

47.  Parker  v.  Olliver,  supra. 

48.  Moore  v.  Sargent,   112  Ind.  ,4S4;     14  N.  E.   466. 
See:    Brown  v.  Thompson,  29  Mich.  72. 

Faulkner's  Adm'x.  v.  Brockenbrough,   4  Rand.   245    (Va.). 

49.  Bachelder  v.  Robinson,  6  N.  H.  12. 


MORTGAGES  139 

been  held  that  accepting  payment  of  a  part  of  the 
debt  would  have  the  same  effect50,  although  it  seems 
to  us  that  better  reasoning  supports  an  opposite 
holding51,  or  at  least  that  the  intention  of  the  parties 
should  be  ascertained  and  that  such  intention  should 
govern.  Of  course  if  the  understanding  is  that  re- 
ceipt of  payment  shall  open  foreclosure,  that  is  con- 
clusive of  the  matter52,  as  are  also  facts  and  circum- 
stances from  which  such  understanding  may  be  in- 
ferred53 ;  but  if  such  intention  remains  doubtful,  the 
foreclosure  will  not  be  waived54. 

Sec.  138.  Where  a  mortgagee  enters  into  pos- 
session of  the  premises  under  a  foreclosure  judg- 
ment, he  does  not  waive  the  entry  of  foreclosure  by 
releasing  the  judgment  and  retaining  possession,  for 
the  continued  actual  possession  is  a  complete  fore- 
closure in  itself55.  But  if  the  mortgagee  bring  ac- 
tion on  the  secured  debt  upon  the  theory  that  the 
land  is  not  worth  the  debt,  and  recovers  judgment 
for  part  of  such  debt,  the  foreclosure  is  thereby 
waived  by  virtue  of  statutory  provision  in  some 
states58. 

Sec.  139.  If  the  mortgagee  give  bond  to  the  mort- 
gagor conditioned  to  discharge  the  mortgage  upon 
payment  of  same  at  a  future  day,  this  has  the  effect 
of  waiving  the  prior  entry  or  opening  the  foreclos- 


50.  Dow  v.  Moor,  59  Me.  118. 
Deming  v.  Comings,  11  N.  H.  483. 

Ross  v.  Leavitt,  70  N.  H.  602;    50  All.  110. 

51.  Tompson  v.  Tappan,  139  Mass.  506;    1  N.  E.  924. 
82.     Dow  v.  Moor,  59  Me.  376. 

54.  Lawrence  v.  Fletcher,  8  Met.   (Mass.)    153. 

55.  Couch  v.  Stevens,  37  N.  H.  169. 
66.     Jones  on  Mortgages,  Art.  1274. 


140  THE  LAW  OF  WAIVEB 

tire,  as  such  bond  is  consistent  only  with  the  con- 
tinued existence  of  the  mortgage57.  And  the  same 
result  is  produced  by  an  agreement  to  abandon  the 
foreclosure  if  the  debt  be  paid  by  a  designated  time58, 
although  the  waiver  will  not  be  effective  unless  pay- 
ment is  actually  made  within  the  time  limited59.  So, 
an  extension  of  time  for  payment  beyond  the  time 
allowed  by  law  to  redeem  wiR  amount  to  a  waiver60, 
as  will  an  agreement  to  re-convey  the  premises61, 
whenever  the  debt  should  be  paid  from  the  rents  and 
profits.  And  if  the  mortgagee  commence  action  of 
foreclosure  of  his  mortgage,  a  prior  entry  is  thereby 
waived,  for  such  action  is  an  admission  that  the 
entry  is  a  nullity  and  is  inconsistent  with  an  inten- 
tion to  rely  upon  it62.  But  an  action  of  trespass  for 
waste  against  the  mortgagor  is  not  a  waiver  of  the 
entry,  for  such  action  is  an  affirmance  of  the  entry63, 
as  is  also  an  action  for  possession  against  a  tenant 
at  will  of  the  mortgagor64.  So,  if  the  mortgagee, 
after  entry,  accept  a  new  security  for  the  whole 
debt,  the  entry  is  thereby  waived,  as  the  continued 
existence  of  the  mortgage  is  still  recognized65. 

Sec.  140.     The  waiver,  to  be  effective,  must  be 
produced  by  the  agreement  or  conduct  of  the  holder 


57.     Joslin  v.  Wyman,   9  Gray  63. 

68.  McNeil  v.  Call,  19  N.  H.  403  ;    51  A.  D.  188. 

69.  Clark  v,  Crosby,  101  Mass.  184. 
Danforth  v.  Roberts,  20  Me.  307. 

60.     Chase  v.  McClellan,  49  Me.  495. 
•1.     Quint  v.  Little,  4  Me.  495. 
62.     Smith  v.  Kelley,  27  Me.  237;    46  A.  D.  595. 

Fay  v.  Valentine,  5  Pick.  418. 

But  see:    Blavln  v.  Gove,  102  Mass.  298. 

Dorrell  v.  Johnson,  17  Pick.  263. 
68.     Page  v.  Robinson,  10  Cush.  99. 
•4.     Fletcher  v.  Gary,  103  Mass.  475. 
65.     Trow  v.  Berry,  113  Mass.  13$. 


MORTGAGES  141 

of  the  mortgage66.  And  when  the  mortgage  is  as- 
signed, the  assignee  has  full  controL  and  charge  over 
it  and  all  rights  pertaining  thereto,  to  all  intents  and 
purposes  the  same  as  the  mortgagee  had,  and  he  has 
the  right  to  waive  an  entry  made  either  by  himself 
or  the  original  mortgagee67 ;  and  the  same  acts  will 
amount  to  a  waiver  as  if  done  by  the  original  mort- 
gagee. 

(3)  WAIVES  OF  FORECLOSURE  SALE  :— 
Sec.  141.  Where  a  sale  of  mortgaged  premises  is 
had  by  foreclosure,  the  parties  may  agree  to  disre- 
gard or  set  aside  the  sale  and  restore  the  title  to  its 
former  condition,  and  such  agreement  will  be  given 
effect  in  the  absence  of  rights  of  third  parties  which 
would  be  contravened  thereby68.  And  any  other 
facts  or  conduct  of  the  mortgagee  may  be  construed 
as  a  waiver  which  manifests  an  intention  not  to 
stand  upon  the  sale.  Thus,  agreeing  to  extend  the 
time  for  payment  of  the  mortgage  debt  beyond  the 
period  allowed  by  law  for  redemption  wijl  operate 
as  a  waiver  of  a  previous  sale69.  But  if  it  is  the 
agreement  that  the  whole  deObt  is  to  be  paid  within 
the  time  allowed  for  redemption,  and  part  payment 
is  received  within  such  time,  such  facts  do  not  con- 
stitute a  waiver  of  the  sale70,  although  it  is  said  tha.t 
accepting  (part  payment  of  the  mortgage  debt  after 


66.  Fisher  v.  Shaw,  42  Me.  32. 

67.  Cutts  v.  York  Mfg.  Co.,  14  Me.  326. 
Hill  v.  Moore,  40  Me.  515. 

Hurd  v.  Coleman,  42  Me.  182. 

Jones,  Mortgages,  Art.   1266. 
«8.     Dodge  v.   Brewer,    31   Mich.   227. 
«9.     Lockwood  v.  Mitchell,  7  Oh.  St.  387  ;    70  A.  D.  78. 
f  0.     Cameron  v.  Adams,  31  Mich.  426. 


142  THE  LAW  OF  WAIVER 

a  foreclosure  sale  is  a  waiver  of  the  foreclosure71. 
The  mortgagee,  however,  cannot  always  simply  by 
his  own  volition,  waive  the  sale  and  render  it  a  nul- 
lity. For  if  such  a  waiver  would  operate  as  a  fraud 
upon  the  mortgagor  he  may  insist  upon  the  sale's 
remaining  intact.  Thus,  it  is  said  that  if  the  mort- 
gagee of  land  purchase  the  premises  on  foreclosure 
for  a  sum  equal  to  the  mortgage  debt,  he  thereby 
satisfies  the  debt,  and  he  cannot  later  abandon  the 
sale  and  sue  on  the  debt72. 

Sec.  142.  A  mortgagee  who  has  become  the  pur- 
chaser of  the  premises  at  a  foreclosure  sale,  and  by 
his  purchasing  renders  the  sale  voidable,  does  not 
waive  the  sale  by  later  entering  into  possession  as 
provided  by  statute  for  foreclosure73.  Nor  is  a  fore- 
closure sale  for  one  installment  of  the  debt  waived 
by  a  suit  for  a  second  installment74;  nor  is  such  a 
result  produced  by  the  remark  of  a  purchaser  at  a 
foreclosure  sale  that  he  wished  only  the  payment  of 
the  debt,  and  if  that  should  be  paid  he  would  re- con- 
vey to  the  mortgagor75.  But  if  in  any  such  under- 
standing fraud  should  be  exercised  upon  the  mort- 
gagor by  the  mortgagee,  the  effect  of  the  sale  will  be 
held  waived  and  the  mortgagor  permitted  to  redeem 
from  it76. 

(4)  WAIVER  OF  RIGHT  TO  SET  ASIDE 
SALE,  (a)  BY  LACHES  OR  DELAY :— Sec.  143. 


fl.  Scott  v.  Childs,  64  N.  H.  566;    15  Atl.  216. 

72.  Hood  v.  Adams,  124  Mass.  481;    26  A.  R.  687. 

13.  Learned  v.  Foster,  117  Mass.  365. 

74.  Wilson  v.  Wilson,  4  la.  309. 

75.  Mansur  v.  Willard,  57  Mo.  347. 
Medsker  v.  Swaney,  45  Mo.  273. 

76.  Stinson  v.  Pepper,  47  Fed.  676. 


MORTGAGES  143 

A  voidable  sale  of  mortgaged  premises  under  fore- 
closure may  b6  set  aside  at  the  instance  of  the  mort- 
gagor, provided  he  act  with  sufficient  promptness 
after  knowledge  of  the  voidability  of  the  sale,  or  if 
he  has  not  been  guilty  of  laches,  or  has  not  otherwise 
so  conducted  himself  as  to  bar  his  rights.  But  the 
presumptions  are  always  in  favor  of  the  regularity 
of  the  sale,  and  it  will  not  be  vacated  except  upon  a 
strict  showing  that  the  irregularities  have  been  taken 
advantage  of  in  a  reasonable  time  and  before  rights 
of  innocent  parties  have  attached77.  Courts  will  not 
interfere  after  a  reasonable  time  has  expired  before 
the  mortgagor  takes  action;  and,  of  course,  if  he 
wait  until  the  statutory  time  for  redemption  has  ex- 
pired, his  right  to  set  aside  the  sale,  if  it  ever  exist- 
ed, will  be  deemed  waived78.  And  a  delay  of  four 
years  was  held  a  waiver  of  the  right  where  the  mort- 
gagor saw  the  property  sold  and  made  no  attempt  to 
redeem  it  or  to  take  any  other  action  until  the  prop- 
erty had  greatly  increased  in  value79.  And  a  delay 
of  seven  or  eight  years  has  been  held  to  amount  to  a 
waiver80. 

Sec.  144.  But  in  order  that  laches  of  the  mort- 
gagor may  be  sufficient  to  amount  to  a  waiver  of  his 
right  to  vacate  an  irregular  or  voidable  sale,  he  must 
have  either  actual  or  imputed  knowledge  of  the  facts 
constituting  the  irregularity  upon  which  he  could 
reasonably  have  been  expected  to  have  based  a  choice 


77.  Harwood  v.  Ry.  Co.,  17  Wall.  78  (U.  S.). 
Terbell  v.  Lee,  40  Fed.  40. 

78.  Depew  v.  Depew,  46  How.  Pr.  441. 

79.  Bryam  v.  Pinney,  3  Ariz.  27 ;    20  Pac.  311. 

80.  Roberts  v.  Fleming,  53  111.  196. 

And  see:    Ex-Miss.  Land  Co.  v.  Flash,  97  Cal.  610;    32  Pac.  600. 
Meier  v.  Meier,  105  Mo.  411 ;    16  S.  W.  223. 


144  THE  LAW  OF  WAIVER 

to  avoid  the  sale  or  abide  by  it81.  Thus,  it  was  held 
that  the  right  to  set  aside  a  sale  was  not  waived 
where  the  mortgagor  paid  no  taxes  on  the  property 
for  five  years,  and  took  no  steps  to  ascertain  whether 
the  mortgage  had  been  foreclosed,  if  he  had  no  notice 
of  the  foreclosure  and  the  mortgage  provided  that  the 
taxes  might  be  paid  by  the  mortgagee  and  recovered 
as  a  part  of  the  mortgage  debt82. 

(b)     EFFECT  OF  REDEMPTION  :^Sec.  145. 
A  mortgagor  cannot  insist  that  a  foreclosure  sale  ia 
subject  to  being  set  aside  and  at  the  same  time  so 
conduct  himself  as  to  recognize  its  validity.  He  must 
be  consistent  in  his  demands  and  in  his  conduct.    And 
so,  one  who  claims  the  right  to  redeem  from  the  sale 
or  attempts  to  exercise  such  right,  thereby  affirms 
the  validity  of  the  sale  and  will  be  held  to  have 
waived  the  defective  elements  thereof  and  also  his 
right  to  vacate  the  sale83.    And  where  the  mortgagor 
made  an  agreement  with  the  purchaser  under  which 
the  former  was  to  remain  in  possession  of  the  prem- 
ises and  have  the  right  to  redeem,  he  was  held  to 
have  waived  any  right  he  may  have  had  to  vacate 
the  sale  after  he  had  broken  his  agreement  to  redeem, 
as  such  agreement  was  inconsistent  with  an  intention 
to  regard  the  sale  as  voidable  and  was  in  affirmance 
of  it84. 


81.  Bausman  v.  Kelley,  38  Minn.  197;    56  N.  W.  333;    8  A.  S.  R.  661. 
2  Pomeroy's  Eq.  Jur.  Sees.  809,  817  and  965. 

Union  Dime  Inst.  v.  Clark,  59  How.  Pr.  342. 

82.  McEachern   v.   Brackett,    8    Wash.   652;     36   Pac.    690;     40   A,   S. 

R.  923. 

83.  Miller  v.  Ayres,  59  la.  424 ;    13  N.  W.  436. 
Dailey  v.  Abbott,  40  Ark.  275. 

84.  Toll  v.  Killer,  11  Paige  (N.  T.)  228. 

Maxwell  v.  Newton,  65  Wis.  261 ;    27  N.  W.  31. 
Randall  v.  Howard,  2  Black.  585. 


MOETGAGES 

(c)  OTHER  CONDUCT  CONSTITUTING 
WAIVER: — Sec.  146.  If  a  mortgagor  accept  the 
surplus  from  a  foreclosure  sale  of  his  premises  over 
and  above  the  mortgage  debt,  he  affirms  the  validity 
of  the  sale  as  much  as  if  he  had  claimed  the  right  to 
redeem,  and  will  not  thereafter  be  heard  to  say  that 
the  sale  was  irregular  or  voidable.  But  at  the  time 
of  accepting  such  surplus  he  must  have  knowledge  of 
the  facts  rendering  the  sale  voidable  or  such  waiver 
will  not  be  held  against  him.  It  is  the  inconsistency, 
with  knowledge  of  the  facts,  that  constitutes  the 
waiver,  as  it  cannot  occur  when  a  party  is  ignorant  of 
his  rights,  if  he  has  not  been  negligent  in  ascertain- 
ing them85. 

But  it  has  been  said  that  the  receipt  of  such  sur- 
plus money  arising  from  the  foreclosure  sale  is  not 
of  itself  a  waiver  of  irregularities  in  the  sale,  but 
merely  evidence  from  which  such  waiver  might  be 
inferred86.  But  such  we  think  is  not  the  better  rule. 
The  matter  is  to  be  determined  according  to  the  in- 
tention of  the  party  having  the  right  to  avoid  the 
sale;  and  this  intention,  in  the  absence  of  an  agree- 
ment between  the  parties,  can  best  be  ascertained 
from  the  conduct  of  the  mortgagor  himself.  And  if 
he  consider  the  sale  voidable  on  account  of  irregular- 
ities, he  must  promptly  take  advantage  thereof  and 
be  consistent  in  his  intention  to  vacate  the  sale.  The 
receipt  of  parts  of  the  fruits  of  a  sale,  with  knowl- 
edge of  the  facts,  can  be  construed  only  as  an  inten- 
tion to  abide  by  the  sale. 

*  • »         .  A 


85.  France  v.  Haynea,  67  la.  139;    25  N.  W.  98. 
Colton  v.  Rupert,  60  Mich.  318 ;    27  N.  W.  520. 
Meriwether  v.  Craig,  118  Ind.  301 ;    20  N.  E.  769. 

86.  Candee  v.  Burke,  1  Hun  546  (N.  Y.). 


146  THE  LAW  OP  WAIVER 

Sec.  147.  If  a  party  have  an  opportunity  to  avail 
himself  of  the  right  to  object  to  a  foreclosure  sale, 
he  must  take  advantage  of  such  opportunity  or  it  will 
later  be  denied  him.  He  must  not  mislead  others 
into  a  belief  that  he  is  satisfied  with  the  manner  in 
which  the  sale  has  been  made,  and  then  attempt  to  in- 
terpose objections  after  such  other  parties  have  been 
induced  by  his  conduct  to  act  to  their  prejudice. 
Thus,  where  a  mortgagor  has  notice  that,  in  pursu- 
ance of  a  statute,  the  sheriff  will  acknowledge  in 
open  court  a  deed  to  the  purchaser  of  mortgaged 
premises,  he  waives  defects  in  the  sale  by  failing  to 
appear  and  object  thereto  at  the  time  set87. 

And  the  voidability  of  the  sale  is  also  waived 
where  with  knowledge  of  defects  the  mortgagor 
makes  a  payment  on  the  amount  remaining  unpaid 
after  sale  of  the  property88 ;  or  if  he  resists  an  execu- 
tion for  the  deficiency  judgment89.  So,  a  purchaser 
cannot  object  to  the  regularity  of  a  sale  after  partici- 
pating in  it  and  accepting  the  fruits  thereof90;  nor 
can  a  party  who  has  been  negligent  in  making  in- 
quiry91, or  claimed  a  part  of  the  proceeds  of  the 
sale92,  or  agreed  that  the  property  might  be  sold  for 
a  certain  price93. 


ST.  Gibson  v.  Lyon,  115  U.  S.  439 :    6  Sup.  Ct.  R.  129 ;    29  L.  Ed.  440. 

t8.  Zable  v.  Bank,  16  S.  W.  588   (Ky.). 

19.  Wallace  v.  Field,  56  Mich.  3  ;    22  N.  W.  91. 

90.  Routh  v.  Citz.  Bank,  28  La.  Ann.  569. 
Howe  v.  Whited,  21  La.  Ann.  495. 

•1.  Francis  v.   Church,   1  Clarke   Ch.   475. 

tJ.  City  of  Baltimore  v.  Parlange,  25  La.  Ann.  33S. 

91.  Smith  v.  Briscoe,  65  Md.  561;    5  Atl.  324. 


LIENS  147 

CHAPTER  5. 

LIENS. 

Section 

1.  POSSESSORY  LIENS 148 

A.  Carriers 149 

B.  Inn-keepers H53 

>C.     Liverymen   and   Agisters 154 

2.  ATTORNEYS'  LIENS 155 

3.  MECHANICS'  LIENS— 

A.  In  General 157 

B.  By  Taking  Debtor's  Note 1,58 

C.  By  Drawing  Draft 163 

•D.     By  Taking  Mortgage 164 

E.  By  Taking  Collateral  Security 166 

F.  iBy  Personal  Judgment,  Attachment  or  Exe- 

cution   168 

G.  Miscellaneous  Waivers 170 

4.  VENDOR'S  LIENS 172 

1.  POSSBSSOEY  LIENS:— Sec.  148.  There 
are  many  liens  that,  as  a  condition  of  their  validity, 
require  that  the  lien-claimant  retain  possession  of  the 
property  upon  which  the  lien  is  asserted.  In  fact 
all  common-law  liens  have  possession  as  their  basic 
element,  and  this  element  once  lost,  the  lien  is  of  no 
more  force  or  effect.  This  is  true  of  the  lien  of  a 
carrier,  an  inn-keeper,  a  liveryman,  an  agister  or  a 
warehouseman.  And  in  any  of  such  cases  there  is 
one  rule  to  be  applied  that  will  determine  the  status 
of  the  lien — if  possession  of  the  property  be  volun- 
tarily surrendered,  any  right  to  a  lien  thereon  is 
thereby  waived94. 


94.     JKgan  v.  Spruce,  41  Fed.  830. 

Ferrlss  v.  Schreiner,  43  Minn.  48 ;    44  N.  W.  1083. 

Hale  v.  Barrett,  26  111.  195 ;    79  A.  D.  367. 

Gregg  v.  111.  Cent.  Ry.,  147  111.  550 ;  35  N.  E.  343  ;  37  A.  S.  R   231. 


148  THE  LAW  OF  WAIVES 

A.  CARBIEB'S :— Sec.  149.  A  common  car- 
rier labors  under  the  obligation  to  receive  and  trans- 
port any  goods  that  may  be  offered,  and,  with  certain 
reservations,  is  liable  for  their  safety  until  their  de- 
livery. By  accepting  the  obligations  and  duties  of  a 
carrier,  such  carrier  is  not  invested  with  any  prop- 
erty rights  in  the  goods  transported ;  such  property 
rights  necessarily  rest  some  other  place.  But  the 
carrier  is  given  the  right  of  control  over  the  goods  till 
it  is  paid  a  reasonable  compensation  for  its  services, 
and  the  right  of  control — or  right  of  possession — 
is  the  lien  with  which  the  carrier  is  endowed  by  law, 
the  right  to  retain  the  goods  till  carriage  charges 
thereon  are  paid.  It  matters  not  who  consigns  the 
property  or  who  is  responsible  for  the  freight,  the 
right  to  the  lien  runs  against  the  true  owner  unless 
he  has  been  defrauded  in  the  shipment95. 

Sec.  150.  But  in  order  to  avail  himself  of.  the 
lien,  a  carrier  must  retain  actual  possession  of  the 
goods ;  for  the  lien  is  its  security  for  payment  of  the 
carriage  charges,  and  by  destroying  the  foundation 
of  the  lien  in  relinquishing  possession  of  the  proper- 
ty, it  is  deemed  to  have  elected  to  look  to  the  person- 
al responsibility  of  the  owner  or  consignee  and  in 
such  election  to  have  abandoned  the  security  given 
it  by  law.  In  other  words,  the  lien  of  a  carrier  of 
'goods  is  waived  by  a  voluntary  relinquishment  of 
possession  without  requiring  payment  of  carriage 
charges96.  But  it  is  evident  that  the  relinquishment 


95.  Robinson  v.  Baker,  5  Gush.  137;    61  A.  D.  64. 

96.  Gring  v.  Lumber,  38  Fed.  528. 
Wingard  v.  Banning,  39  Cal.  543. 
Bigelow   v.   Heaton,    4   Denio    496. 


LIENS  149 

of  possession  must  be  voluntary,  for  if  it  be  obtained 
through  subterfuge  or  by  fraudulent  means,  the  lien 
will  be  held  not  waived — waiver  in  this  as  in  other 
cases  being  induced  by  an  intentional  act  or  by  con- 
duct so  inconsistent  with  any  other  intention  as  to 
cause  an  intended  surrender  to  be  implied97.  And  it 
will  be  seen  that  the  surrender  of  possession  must  be 
with  the  intention  that  the  carrier  will  part  with  his 
interest  in  the  goods  delivered,  and  it  has  therefore 
been  held  that  where  possession  was  relinquished 
under  the  belief  that  the  carriage  charges  would  be 
paid  at  the  time  the  lien  was  not  lost98.  And  the  car- 
rier may  make  any  kind  of  agreement  with  the  owner 
of  goods  as  to  conditions  to  be  annexed  to  a  surren- 
der of  possession,  or  that  such  surrender  shall  not 
operate  as  a  waiver,  and  any  such  agreement  will  be 
given  effect  by  the  courts  and  the  lien  sustained99. 
But  if  the  delivery  be  voluntary  and  unconditional, 
the  lien  will  be  waived  no  matter  what  motives  in- 
duced the  surrender  of  possession100. 

S'ec.  151.  While  a  carrier's  lien  depends  upon 
possession  for  its  validity,  it  does  not  follow  that  the 
mere  surrendering  of  possession  is  the  only  means 
through  which  a  waiver  of  the  lien  occurs.  Such 
waiver  will  be  impli ed  if  the  carrier  attach  for  freight 


Reineman  v.  Ry.  Co.,  51  la.  338 ;    1  N.  W.  619. 

Gregg  v.  HI.  Cent.  Ry.,  147  111.  550 ;    85  N.  E.  343. 

Lake  Shore  Ry.  v.  Ellsley,  85  Pa.  St.  283. 

Bailey  v.  Quint,  22  Vt.  474. 
91.     Geneva,  etc.  Ry.  v.  Sage,  35  Hun  95  (N.  T.). 

Bigelow  v.  Heaton,  supra. 
98.     151  Tons  Coal,  4  Blatchf.  368. 
$9.     The  Eddy,  5  Wall.   481    (IT.  S.). 
100.     Sears  v.  Wills,  4  Allen  212. 


150  THE  LAW  OF  WAIVER 

charges  the  property  upon  which  the  lien  is  claimed1, 
or  levy  an  execution  upon  it,  or  put  its  refusal  to  de- 
liver upon  the  ground  that  the  goods  are  not  in  its 
possession  at  the  place  where  demand  is  made2,  or 
negligently  damage  the  goods  in  an  amount  in  excess 
of  the  charges3;  and  the  lien  is  waived  where,  be- 
tween the  carrier  and  the  consignor,  there  is  a  stipu- 
lation for  payment  of  freight  at  a  place  different 
from  that  at  which  the  goods  were  to  be  delivered, 
for  such  an  agreement  must  necessarily  present  the 
inference  that  payment  was  not  intended  to  be  de- 
manded as  a  condition  precedent  to  delivery4. 

Sec.  152.  And  a  waiver  occurs  if  the  time  ar- 
ranged for  payment  of  transportation  charges  be 
inconsistent  with  the  existing  of  a  lien  depending,  as 
that  of  a  carrier  does,  upon  possession  for  its  valid- 
ity. Thus,  if  credit  for  freight  be  given  to  a  period 
subsequent  to  the  time  when  the  goods  are  to  be  de- 
livered, the  lien  is  thereby  displaced5 ;  and  the  same 
result  follows  the  taking  of  notes  or  other  security 
payable  after  the  time  arranged  for  the  delivery  of 
the  goods  transported6.  But  the  taking  of  notes 
for  the  charges  is  not  a  waiver  of  the  right  to  a  lien 
if  the  notes  mature  prior  to  the  time  for  delivery  of 
the  goods  carried. 


1.  Wingard  v.  Banning,  39  Cal.  543. 

2.  Adams  Ex.  Co.  v.  Harris,  120  Ind.  307;  16  A,  S.  R.  315. 

3.  Dyer  v.  Grand  Trunk  Ry.,  42  Vt.  441 ;    1  A.  R.  350. 

4.  Raymond  v.  Tyson,  17  How.  53   (U.  S.). 
6.     Pinney  v.  Wells,  10  Conn.  104. 

Chandler  v.  Belden,  18  Johns.  157 ;    9  A.  D.  193. 
Plckman  v.  Woods,  6  Pick.  241. 

6.     Bird  of  Paradise,  5  Wall.  545  (U.  S.). 


LIENS  151 

B.  INN-KEEPERS:— Sec.  153.    A  Hen  is  re- 
served by  law  in  favor  of  inn-keepers  and  boarding- 
house  keepers  upon  the  property  of  their  guests  turn- 
ed over  to  them,  for  charges  of  entertainment.    But 
this  lien  depends  for  its  validity  upon  the  keeper's  re- 
taining possession  of  the  property  till  the  charges  are 
paid,  for  his  loss  of  possession  is  the  loss  of  his 
lien  unless  the  goods  were  taken  from  him  through 
the  fraud  of  the  guest,  in  which  event  the  lien  is  not 
lost  nor  released7.    It  is  of  no  moment  whether  the 
charges  be  paid  or  not,  the  question  whether  such  a 
lien  has  'been  released  or  waived  must  depend  upon 
the  proposition  whether  or  not  the  keeper  has  volun- 
tarily relinquished  the  goods  without  first  demand- 
ing payment  of  the  charges.    If  this  proposition  be 
shown  in  the  affirmative,  then  the  lien  is  waived. 
But  a  waiver  may  also  occur  by  the  keeper's  taking 
security  for  his  charges  inconsistent  with  the  con- 
tinued existence  of  the  lien.     And  it  may  also  be 
shown  by  an  agreement  for  payment  at  a  future  time 
which  in  itself  is  preclusive  of  an  intention  that  the 
lien  shall  continue. 

C.  LTOEiRYMEN    AND    AGISTEBS :— Sec. 
154.     The  rules  announced  are  equally  applicable 
where  the  lien  is  that  of  a  liveryman  or  agister  upon 
an  animal  cared  for.    But  more  difficulty  is  encount- 
ered in  applying  the  rules ;  for,  while  the  voluntary 
surrender  of  possession  of  the  animal  constitutes  a 
waiver  of  the  lien,  it  is  not  always  easy  to  declare 
what  is  such  a  surrender  of  possession  as  will  con- 
stitute waiver.    Thus,  the  keeper  of  a  horse  may  per- 

7.     Manning  v.  Uollenbeck,  27  Wis.  202. 


152  THE  LAW  OF  WAIVER 

mit  the  owner  to  take  the  horse  for  a  temporary  use 
with  the  implied  understanding  that  it  will  be  re- 
turned, and  in  such  event  the  lien  will  be  held  not 
waived,  for  the  necessary  intention,  either  express 
or  implied,  is  lacking8.  But  the  effect  is  otherwise 
if  possession  be  delivered  to  the  owner  for  more  than 
a  temporary  use  or  without  an  understanding  that 
the  animal  is  to  be  returned  to  the  keeper9. 

2.  ATTORNEYS 'LIENS:— Sec.  155.  In  some 
states  an  attorney  has  a  lien  against  a  judgment  pro- 
cured for  his  client  for  his  fees  earned  in  the  case. 
The  lien  cannot  be  divested  except  by  some  act  of  the 
attorney  himself  or  of  some  one  with  his  knowledge 
and  approval.  But,  like  any  other  lien,  it  may  "be 
lost  or  waived,  and  a  waiver  will  be  construed  from 
any  act  of  the  attorney  indicating  an  intention  not 
to  rely  upon  or  enforce  the  lien.  It  may  be  waived 
by  any  transaction  or  arrangement  for  payment  by 
which  the  attorney  looks  to  other  security  or  mode 
of  payment.  But  the  intention  that  the  lien  shall 
no  longer  exist  should  be  made  to  clearly  appear  or 
a  waiver  should  not  be  inferred10.  The  lien  is  not 
waived  by  a  delay  of  several  years  to  collect  the  de- 
mand if  there  is  no  negligence  on  the  part  of  the  at- 
torney, and  the  debtor  has  notice  of  the  lien11 ;  nor 
will  th*  fact  that  the  judgment  has  become  dormant 


8.  Wall  v.  Long,  2  Ind.  App.  202;    28  N.  E.  101. 
Young  v.  Klmb^l,  23  Pa.  St.  193. 

Caldwell  v.  Tutt,  10  Lea  258 ;    43  A.  R.  317. 

9.  Seebaum  v.  Handy,  46  Oh.  St.  560;    22  N.  E.  869. 
Ferris  v.  Schreiner,  43  Minn.  48;    44  N.  W.  1083. 
Paplneaw  v.  "Wentworth,  136  Mass.  543. 

Estey  v.  Cooke,  12  Nev.  276. 

10.  Rentek  v.  Ludlngton,  16  W.  Va.  378. 

11.  Stone  v,  Hyde,  22  Me.  318. 


LIENS  153 

•  &•'•  -        <? 

and  has  been  revived  by  other  attorneys  deprive  an 
attorney  of  his  lien  upon  the  judgment12;  nor  does 
an  attorney  waive  his  lien  by  taking  the  note  of  his 
client  for  his  fee13. 

Sec.  156.  But  a  lien  upon  a  specific  fund  is 
waived  where  an  attorney  accepts  an  assignment  of 
the  fund  itself14.  And  the  lien  is  lost  to  him  who  pro- 
cures a  satisfaction  of  the  judgment  upon  which  the 
lien  exists15,  or  releases  property  from  the  operation 
of  the  judgment1'.  And  it  has  even  been  held  that 
the  recovering  of  a  judgment  for  his  services  against 
his  client  is  a  waiver  of  the  attorney's  lien17; 
but  to  the  writer's  mind  this  holding  is  of  question- 
able propriety,  especially  if  the  judgment  against 
the  client  be  uncollectible. 

3.    MECHANICS'  DIENiS. 

A.  IN  GENERAL :— Sec.  157.  The  right  to  a 
mechanic's  lien,  like  any  other  legal  right  or  benefit, 
may  be  relinquished  or  waived  by  him  who  is  entitled 
to  it ;  and  such  waiver  may  arise  either  from  an  ex- 
press or  implied  consent  or  from  a  course  of  con- 
duct calculated  from  its  nature,  to  inspire  a  belief 
that  the  right  would  not  be  asserted.  No  difficulty,  of 
course,  arises  where  an  express  waiver  has  been 
made;  but  much  confusion  has  been  met  in  cases 
where  an  implied  consent  to  such  waiver  has  been 
alleged,  or  where  conduct  is  such  that  an  intention 


12.  Jenkins  v.   Stephens,    60   Ga.   216. 

13.  Davis  v.  Jackson,  80  Ga.  138. 

14.  Fulton  v.  Harrington,  7  Houst.  182. 

15.  Cowcn   v.  Boone,    48  la.   350. 

16.  Wishard  v.  Biddle,  64  la.  526 ;   21  N.  W.  IB. 

17.  Clark  v.  Dickerman,  95  Mich.  289. 


154  THE  LAW,  OF  WAIVEB 

to  waive  is  sought  to  be  deduced  from  it.  The 
authorities  are  not  uniform  in  their  statements  as  to 
what  facts  are  sufficient  to  constitute  a  waiver  of  the 
right  to  such  a  lien.  But  after  much  sifting  of  rea- 
sons, the  cases  have  converged  to  a  point  of  compara- 
tive ilnifomiity  in  their  annunciation  of  principles 
governing  the  waiver  of  the  lien,  the  main  point  of 
difficulty  now  beiog  the  application  of  these  prin- 
ciples to  the  facts  of  each  particular  case.  And  it 
will  fee  seen  from  an  examination  of  recent  cases  that 
the  question  of  waiver  or  non- waiver  of  a  mechanic's 
lien  or  the  right  thereto  resolves  itself  into  merely 
a  question  of  what  intention  can  be  implied  from  a 
party's  conduct,  the  waiver  in  all  oases  being  one  of 
intent.  Many  different  states  of  fact  have  been  al- 
leged in  attempts  to  show  that  the  lien  or  the  right 
thereto  has  been  waived;  and  in  the  following  sec- 
tions will  be  shown  what  have  and  what  have  not 
been  held  to  constitute  a  waiver. 

B.  BY  TAKING  DEBTOR'S  NOTE:— 6ea 
158.  The  taking  of  a  note  for  the  amount  due  one 
entitled  to  a  mechanic's  lien  may  or  may  not  consti- 
tute a  waiver  of  the  right  to  the  lien  according  to  the 
intent  with  which  it  is  received.  Ordinarily  a  note 
is  not  a  payment  of  a  debt,  but  only  a  promise  to  pay, 
or  an  item  of  evidence  showing  an  indebtedness. 
And  so  it  is  said:  "A  note,  unless  it  is  taken  in 
payment  absolutely,  will  not  discharge  a  mechan- 
ic's lien.  It  serves  but  to  liquidate  the  demand,  and 
leaves  the  party  to  seek  his  satisfaction  upon  the 
original  contract"18.  The  right  to  a  lien  is  not  lost 


18.     Phillips,  Mech.  Liens,  3d  Ed.  27«. 


LIENS  155 

'by  the  taking  of  a  note  maturing  within  the  time  al- 
lowed by  law  for  foreclosing  the  lien19 ;  and  this  la 
true  even  though  the  date  of  maturity  is  after  the 
time  limited  by  law  for  filing  the  lien20.  In  fact,  no 
acceptance  of  a  note  is  sufficient  to  waive  the  right 
to  a  lien  unless  there  is  at  the  same  tisie  a  positive 
agreement  for  such  waiver21.  And  it  makes  no  dif- 
ference that  a  receipt  is  given  at  the  same  time  the 
notes  are  received  stating  that  they  are  in  payment 


19.  Schmidt  v.  Gilson,  14  Wis.  517. 

Bailey  v.  Hull,  11  Wls.  289  ;    78  A.  D.  706. 
Charlotte  v.  Hammond,  9  Mo.  58;    43  A.  D.  536. 
Doane  v.  Clinton,  2  Utah  421. 

20.  McMurray  v.  Taylor,  30  Mo.  264;    77  A.  D.  611. 
Ashdown  v.  Woods,  31  Mo.  466. 

Miller  v.  Moore,  1  E.  D.  Smith  739. 

Kllpatrick    v.    K.    C.    Etc.    By.,    38    Neb.    620;     57    N.    W.    M4; 
41  A.  S.  R.  761. 

21.  Logan  v.  Attex,  7  la.  77. 
Brady  v.  Anderson.  24  111.  110. 
Mllwain  v.  Sanford.  3  Minn.  147. 
Doane  v.  Clinton,   2   Utah   417. 
Edwards  v.  Derriekson,   28  N.  J.  39. 
Gere  v.  Gushing:,  5  Bush  304. 

Leftwich  Lbr.  Co.  v.  Florence  Assoc.,  104  Ala.  584 ;    18  So.  4t. 
Paddock  v.  Stout,  121  111.  571;    13  N.  E.  182. 
Dawson  v.  Black,  148  111.  484;    36  N.  E.  413. 
Millikin  v.  Armstrong,  17  Ind.  456. 
Bashor  v.  Nordyke  Co.,  25  Kans.  222. 
Pope  v.  Graham,  44  Tex.  196. 

McDonald  v.  Ry.  Co.,  93  Tenn.  281  ;    24  S.  W.  252. 
Wheeler  v.  Schroeder,  4  R.  I.  383. 
Allls  v.  Distilling  Co.,  67  Wis.  16  ;    29  N.  W.  543. 
Fisher  v.  Rush,  71  Pa.  St.  40. 
Trullinger  v.  Kofoed,  7  Oreg.  228. 
Bernsdorf  v.  Hardway,  7  Oh.  Cir.  Ct.  R.  378. 
Barnocle  v.  Hendrickson,  42  Neb.  169;    60  N.  W.  38S. 
O'Brien  v.  Hanson,  9  Mo.  App.  546. 

Md.    Brick    Co.    v.    Spilman,    76    Md.    337;     25    Atl.    297. 
McKe*n  v.  Haseltine,  46  Minn.  426 :    49  N.  W.  195. 
Smith,  Etc.  Co.  v.  Butts,  72  Miss.  269 ;    16  So.  242. 
Wia.  Tr.  Co.  v.  Robinson  Co.,   68  Fed.  778  ;    15  C.  C.  A.  6«8. 
Meek  v.  Parker.  63  Ark.  367  ;    38  S.  W.  900  ;    58  A.  S.  R.   lit. 


156  Tfia  LAW  OP 


of  the  indebtedness22,  for  a  receipt  is  always  open 
to  explanation*8  in  the  matter  of  a  lien  the  same  as 
in  other  cases24. 

Sec.  159.  Whether  or  not  a  note  accepted  by 
a  lien  claimant  constitutes  a  payment  sufficient  to 
debar  a  right  to  a  lien  is  a  question  of  fact25,  although 
contrary  to  the  doctrine  mentioned  above,  it  has 
been  held  that  the  acceptance  of  a  note  is  as  a  mat- 
ter of  law  at  least  prima  facie  evidence  of  payment 
and,  consequently,  a  waiver  of  the  lien26;  but  the 
weight  of  authority  denies  the  soundness  of  this 
principle27,  some  cases  even  holding  that  where  it  is 
expressly  agreed  that  the  note  shall  be  received  in 
payment,  yet  the  agreement  is  conditional,  contin- 
gent on  the  note's  being  paid  at  maturity  and  in 
default  of  such  payment  the  original  cause  of  ac- 
tion revives28.  The  fact  that  the  note  given  by  the 
debtor  draws  interest  does  not  interfere  with  the 
application  of  the  foregoing  principles,  for  it  is  not 
a  waiver  of  the  right  to  a  lien29. 


22.  Hoa&land  v.  Lusk,  33  N«»b.  376;    50  N.  W.  162;    29  A.  S.  R.  486. 
McMurray  v.  Taylor,  80  Mo.  263  ;    77  A.  D.  611. 

Shaw  v.  Pres.  Cbyrch,  39  Pa.  St.  226. 

Wheeler  v.  Sehroeder,  4  R.  I.  385. 

Goble  v.  Gale,  7  Blackf.  218 ;    41  A.  D.  219. 

23.  McMurray  v.  Taylor,  supra. 

Peter  v.  Beverly,  10  Pet.  568   (U.  S.). 

See:    Jones  v.  White,  72  Tex.  316;    12  S.  W.  179. 

24.  Glenn  v.  Smith,  2  Gil.  &  J.  493 ;    20  A.  D.  452. 
Tobey  v.  Barber,  5  Johns.  68  ;    4  A.  D.  326. 

25.  Casey  v.  Weaver,  141  Mass.  280;    6  N.  B.  372. 

26.  Mehan  v.  Thompson,  71  Me.  492. 
Teal  v.  Spangle,  72  Ind.  380. 

27.  Whltla  v.   Taylor,   6  La.  Ann.   480. 
Sweet  v.  James,  2  R.  I.  270. 

28.  Crary  v.  Bowers,  20  Cal.  88. 
Crawford  v.  Roberts,  50  Cal.  28*. 

29.  Schmidt  v.  Gilson,  14  Wls.  514. 
Brady  v.  Anderson,    24   111.   110. 


LIENS  157 

Sec.  160.  But  there  are  circumstances  under 
which  the  taking  of  a  note  may  prohibit  the  enforc- 
ing of  a  lien.  If  the  note  cover  items  other  than 
those  in  the  lien  claim,  it  will  operate  as  a  waiver30. 
And  also  a  waiver  will  occur  if  the  note  is  intended 
and  accepted  as  a  full  payment  and  discharge  of  the 
indebtedness?1.  Of  course  a  waiver  follows  an 
agreement -therefor32,  and  even  w,here  a  third  party 
guarantees  payment  of  the  note33.  But  the  accept- 
ance of  the  note  of  a  third  person  who  afterwards 
becomes  insolvent,  in  part  payment  for  the  construc- 
tion of  a  buifding,  although  without  the  knowledge 
of  the  surety  on  the  contractor's  bond,  does  not  con- 
stitute such  a  change  in  the  contract  as  to  release  the 
surety,  the  contractor,  in  the  absence  of  a  prohibi- 
tion, having  the  right  to  waive  payment  in  money34. 

•Sec.  161.  A  distinction  sometimes  arises  in  the 
case  of  the  negotiation  of  a  note  taken  on  account 
for  a  mechanic's  lien.  In  this  connection  it  has  been 
held  that  the  discounting  of  a  note  at  a  bank  is  not  a 
waiver  of  a  lien  if  the  note  can  be  surrendered  at 
the  trial  on  the  lien,  and  the  payee  may  prosecute 
the  suit  to  the  use  of  his  assignee35.  In  a  South 
Dakota  case  it  is  said:  "We  are  unable  to  discover 


80.     Blakely  v.  Moshier,  94  Mich.  299 ;    54  N.  W.  54. 

Schulenburg  v.  Robison,  5  Mo.  App.  561. 
SI.     Coburn  v.  Kerswell,  35  Me.  126. 

McCoy  v.  Quick,  30  Wis.  521. 

Teal  v.  Spangler,  72  Ind.  380. 

Vason  v.  Bell,  53  Ga.  416. 

Crooks  v.  Finney,  39  Oh.  St.  57. 
82.     Button  v.  Ins.  Co.,  29  N.  H.  153. 
88.     Kankakee  Coal  Co.  v.  Crane  Co.,  138  HI.  207;    27  N.  E.  935. 

84.  Foster  v.  Gaston,  123  Wis.  96. 

85.  Morrison  v.  Laura,  40  Mo.  260. 

Hill  v.  Alliance  Co.,  6  8.  Dak.  160;    60  N.  W.  752;    65  A.  S.  R. 
819. 


THE  LAW  OF  WATVEB 

a  valid  reason  for  holding  that  the  assignment  of  a 
debt  by  a  person  who  is  entitled  to  a  mechanic's 
lien  as  security  therefor  is  alone  sufficient  to  consti- 
tute a  waiver  of  such  lien;  and  the  fact  that  a  note 
was  taken,  not  in  payment  of  the  debt,  but  for  the 
accommodation  of  the  debtor  *****  has  no 
tendency  to  create  a  waiver  or  discharge  of  the  lien 
while  the  debt  remains  unpaid,  and  the  lien  may  be 
enforced  by  the  assignee "36.  And  further:  "The 
negotiation  of  the  note  neither  defeated  nor  sus- 
pended the  right  of  the  claimants  and  payees  therein 
named  in  case  they  had  been  called  upon  to  take  up 
the  note"37.  The  weight  of  authority  sustains  these 
principles38. 

S'ec.  162.  It  has  been  held,  however,  that  nego- 
tiation of  the  note  bars  the  lien39,  although  it  is  said 
in  the  same  state  that  a  mere  attempt  at  negotiation 


36.  Hill  v.  Alliance  Co.,  supra,  citing: 
Kerr  v.  Moor«,  54  Miss.  286. 
Skyrme  v.  Occ'd.  Etc.  Co.,  8  Nev.  219. 
Rankin  v.  Thompson,  7  Colo.  381. 
Sweet  v.  James,  2  R.  I.  270. 

Smith  v.  Johnson,  2  McAr.  481. 
Alken  v.  Fannie  Barker,  40  Mo.  257. 
Tuttle  v.  Howe,  14  Minn.  145  ;    100  A.  D.  205. 
Phillips,  Mech.  Liens,  Sees.  275-7. 

37.  Hill  v.  Alliance  Co.,  supra,  citing: 

German  Bank  v.  Schloth,  59  la.  316 ;    13  N.  "VT.  314. 

Miller  v.  Moore,  1  E.  D.  Smith,  739. 

Teaz  v.  Chrystle,  2  Abb.  Pr.  109. 

Clement  v.  Newton,  78  111.  427. 

Sweet  v.  James,  2  R.  I.  270. 

15  A.  &  E.  Enc.  Law,  106. 

Phillips,  Mech.  Liens,  Sec.  278. 

38.  Truet  Co.   v.   Robinson   Co.,   68  Fed.   778;    16  C.   C.  A.   <68 ;    SI 

U.  S.  App.  435. 
Beers  v.  Knapp,  Fed.  Cas.  No.  1232. 

39.  Scott  v.  Ward,  4  G.  Greene  112  (la.). 
See  also:   East  v.  Ferguson,  59  Ind.  1C*. 
Schneider  v.  Kolthoff,  59  Ind.  568. 


LIENS  159 

•will  not  produce  such  consequences41.  And  further 
in  the  same  state  that  transferring  the  note  will  bar 
the  right  to  a  lien  while  the  note  is  in  the  hands  of 
a  stranger  to  the  original  contract,  'but  that  if  the 
note  'be  dishonored  and  the  payee  take  it  up  he  may 
still  enforce  the  lien41.  So,  where  the  note,  after  in- 
dorsement, was  indorsed  back  to  the  original  payee, 
the  right  to  a  lien  was  held  intact42.  But  an  action 
brought  to  foreclose  a  mechanic's  lien  was  dismissed 
where  plaintiff  had  taken  notes  for  the  claim  and 
it  appeared  that  these  were  not  under  his  control43. 
It  will  be  seen  from  an  examination  of  the  cases  that 
the  right  to  assert  a  lien  will  usually  be  allowed  al- 
though notes  have  been  given  covering  the  claim,  if 
the  notes  are  surrendered  at  trial  for  cancellation. 
This  principle  is  just  to  both  parties,  as  it  gives  the 
mechanic  all  the  rights  he  had  in  the  first  place,  and 
is  of  no  injury  to  the  claim-debtor  since  he  usually 
has  the  benefit  of  an  extension  of  time  by  reason  of 
the  giving  of  the  notes.  Thus,  a  workman  who  ne- 
gotiated a  note  taken  for  his  labor  but  took  it  up 
prior  to  filing  his  claim,  and  surrendered  it  in  court, 
was  not  denied  enforcement  of  his  lien44.  But  a  de- 
cree will  not  be  ganted  on  a  lien  until  the  plaintiff 
is  in  control  of  the  note  given  for  the  amount  and 
offers  to  surrender  it45,  unless  it  has  already  been 


40.  Hawley  v.  Warde,  4  G.  Greene  36  (la.). 

41.  German  Bank  v.  Schloth,  59  la.  316;    13  N.  W.  314. 
Edwards  v.  DerricksoH,  28  N.  J.  L.  39. 

Graham  v.  Holt,  43  Ky.  61. 

42.  Bashor  v.  N.  &  M.  Co.,  25  Kans.  222. 
45.     McDuffee  v.  Rea,  13  Pa.  Co.  Ct.  R.  2«1. 

44.     Davis  v.  Parsons,  157  Mass.  584;    32  N.  E.  HIT. 
4i.     Bayard  v.  McGraw,  1  111.  A»p.  1S4. 
Clement  v.  Newton,  78  111.  427. 


160  THE  LAW  or  WAIVES 

given  up ;  for  if  it  were  still  out,  payment  of  its  face 
value  could  be  enforced  by  an  innocent  holder  for 
value,  and  the  debtor  thus  compelled  to  answer  twice 
for  the  debt46; 

C.  BY  DRAWING  DRAFT:— ®ec.  163.    The 
drawing  of  a  draft  on  the  lien  debtor  which  is  ac- 
cepted is  held  not  to,  be. a  waiver  of  the  right  to  a 
lien47.    And, 'of  course,  an  unaccepted  draft  could 
not  constitute  a  waiver48.'" 

.      .  *      »«.-     '       «r  -'.-,-.      £.,,.'„*         J!*'T  ''     '•    i 

D.  BY  TAKING  MORTGAGE :— Sec.  164.  The 
statutes  of  some  states  provide  that  the  taking  of 
collateral  security  is  a  waiver  of  the  right  to  a  me- 
chanic's lien.    But  it  is  said  that  the  taking  of  a 
mortgage  on  the  property  on  which  one  is  entitled 
to  a  lien  is  not  taking  collateral  security  and,  there- 
fore, such  statute  is  not  applicable49.    Irrespective 
of  any  such  statute,  however,  the  cases  present  a 
condition  of  irreconcilable  division  as  to  whether  the 
taking  of  a  mortgage   on  property  constitutes   a 
waiver  of  the  right  to  a  lien  on  the  same  property 
for  the  same  debt.    And  here,  as  in  the  case  of  tak- 
ing a  note,  the  criterion  has  been  held  to  be  the  in- 
tention with  which  the  mortgage  is  accepted.    For 
it  was  said  by  a  Federal  court  that  the  taking  of 
security  on  the  same  property  is  not  a  waiver  of  the 


46.  Morrison  v.  The  Laura,  40  Mo.  260. 
Balkcom.v.  Lbr.  Co.,  91  Ga.  651;-  17  S.  E.  1020. 
Rush  v.  Fisher,  8  Phila.  44. 

47.  Jones  v.  White,  72  Tex.  316;    12  S.  W.  179. 
Gere  v.  Gushing,  5  Bush  304.  -••"»'"«  •*    * 
Meeks  v.  Simms,  84  111.  422. 

Bodley  v.  Denmead,  1  W.  Va.  249. 
Mehan  v.  Thompson,  71  Me.  492. 

48.  Palmer  v.  Mining  Co.,  70  Cal.  614;    11  Fac.  668. 

49.  Gilchrlet  v.  Gottschalk,  39  la.  311. 


LIENS  161 

right  to  a  mechanic's  lien  unless  it  appears  affirma- 
tively that  it  was  the  intention  of  the  holder  of  the 
claim  to  look  to  such  security  and  not  to  the  lien50. 
And  this  proposition  is  sustained  in  other  cases51. 

Some  courts'  hold  without  any  equivocation  that 
a  mechanic's  lien  on  real  property  is  waived  by  the 
taking  of  a  mortgage  on  the  property  to  secure  the 
lien-claim52.  And  some  go  so  far  as  to  say  that  even 
an  agreement  for  the  acceptance  of  a  mortgage  con- 
stitutes a  waiver  of  the  lien,  the  two  securities  being 
inconsistent53.  In  support  of  these  views,  it  is  said 
by  an  Oregon  court :  ' '  The  rule  seems  to  be  well  set- 
tled that  where  a  mechanic  takes  a  mortgage,  either 
on  the  same  property  to  which  the  lien  attaches  or  on 
other  property,  he  thereby  waives  his  lien,  and  the 
reason  is,  as  observed  in  many  of  the  cases  cited,  that 
subsequent  lien-holders  and  purchasers  have  a  right 
to  rely  on  the  record,  and  should  be  protected  against 
secret  liens.  In  this  case  it  is  true  that  the  lien  was 
filed  at  the  same  time  the  mortgage  was  given,  but  if 
the  general  doctrine  be  established  that  the  taking  of 
a  mortgage  on  the  property  is  not  a  waiver  of  the 
mechanic's  lien,  a  mechanic  may  hold  a  mortgage  on 


10.  Hale  v.  Burlington  Ry.,  13  Fed.  203  ;    2  McCreary  558. 

11.  Henry  &  Co.  v.  Bond,  37  Neb.  207 ;    55  N.  W.  643. 

Chapman  v.  Brewer,   43  Neb.  890;    62  N.  W.  320;    47  A.  S.  R. 
779. 

Boyle  v.  Robbins,  71  N.  Car.  130. 

Hall  v.  Pettlg^-ove,  10  Hun  609. 

Roberts  v.  Wilcoxon,  36  Ark.  355. 
IS.     Trulllnger  v.  Kofoed,  7  Oreg.  228;    33  A.  R.  708. 

Gardner  v.  Hall,  29  HI.  277. 
IS.     Barrows  v.  Baughman,  9  Mich.  213. 

Gorman  v.   Sagner,  22  Mo.  137. 

Weaver  v.  Demuth,  40  N.  J.  L.  238. 

Willison  v.  Douglass,  66  Md.  99  ;    6  Atl.  530. 


162  THE  LAW  OP  WAIVER 

the  property  and  afterward,  at  any  time  allowed  by 
the  statute,  file  his  lien."54. 

Sec.  165.  Other  cases  are  just  as  positive  in 
support  of  the  contrary  view  and  say  that  under  such 
facts  no  waiver  takes  place  55.  The  better  reasoning 
would  seem  to  support  the  view  that  whether  the 
taking  of  a  mortgage  is  a  waiver  of  the  right  to  a  lien 
on  the  mortgaged  property  is  a  question  of  intention 
to  be  deduced  from  the  facts  of  each  particular  case, 
but  that  innocent  third  parties,  relying  on  the  record, 
shoud  not  be  caused  to  suffer  on  account  of  such 
reliance. 

E.  BY  TAKING  COLLATERAL  SECURI- 
TY:— Sec.  166.  As  has  been  above  noted,  the  stat- 
utes of  'some  states  provide  that  the  taking  of  collat- 
eral security  is  an  abandonment  of  the  right  to  a 
mechanic's  lien56.  In  the  absence  of  such  a  statute, 
there  is  as  to  this  proposition,  also,  a  hopeless  conflict 
among  the  authorities.  But  here,  too,  it  is  thought 
that  the  matter  should  be  determined  according  to 
the  intent  of  the  parties.  So,  a  Nebraska  court  has 
said  that  the  taking  of  collatera  security  for  an 
account  for  materials  furnished  is  not  a  waiver  of  the 
right  to  assert  a  lien  unless  such  was  the  intention  of 
both  parties57.  And  the  Minnesota  court  holds  the 


i4.     Trullinger  v.  Kofoed,  supra. 

fS.     Kingsland  Co.  v.  Massey,  69  Miss.  296  ;    13  So.  269. 

Parberry  v.  Johnson,  51  Miss.  291. 

Hall  v.   Pettlgrove,    10   Hun   609. 
61.     Kentucky. 

Georgia. 

Iowa. 

New  Mexico. 

North  Dakota. 

South  Dakota. 
§7.     Union  Bank  v.  Baker,  42  Neb.  880 ;    61  N.  W.  Jl. 


LIENS  163 

same  way  by  saying  somewhat  conversely  that  the 
taking  of  other  security  is  not  a  waiver  if  it  appears 
that  such  was  not  the  intention  of  the  parties58.  And 
the  Iowa  courts,  being  bound  by  a  statute  declaring 
that  the  taking  of  collateral  security  waives  the  lien, 
yet  say  that  in  order  to  produce  this  consequence  the 
contract,  promise  or  property  taken  must  be  taken 
and  accepted  as  collateral  security69.  And  in  that 
state  it  is  held  that  the  statute  does  not  apply  to  a 
case  where  the  claimaint  albandons  the  security  and 
relies  on  the  lien60.  A  contractor  assigned  to  a  mat- 
erial-man all  his  rights  under  his  contract  with  the 
owner  of  the  building  as  security  for  the  price  of 
materials  furnished,  and  the  acceptance  of  this  secur- 
ity was  held  no  waiver  of  the  right  to  a  lien  on  the 
building  and  premises61 ;  and  neither  is  the  accepting 
a  bond  or  warrant  of  attorney62.  The  agreement  for 
security,  it  is  said,  must  be  inconsistent  with  the 
enforcement  or  existence  of  the  lien63.  And  in  pos- 
sibly a  majority  of  the  states  it  is  held  that  in  the 
absence  of  statutory  provision  the  taking  of  collater- 
al security  is  not  necessarily  inconsistent  with  an 
intention  to  preserve  the  lien64.  A  resrpecta'ble  line  of 


58.  McKeen  v.  Haseltine,  46  Minn.  426  ;    49  N.  W.  195. 

Kilpatrick  v.  Kans.  City  Co.,  38  Neb.  620;  57  N.  W.  664;  41  A.  S. 
R.  741. 

59.  Merwin  v.  Sherman,  9  la.  331. 

60.  Getchell  v.  Musgrove,  54  la.  744 ;    7  N.  W.  154. 

•1.     Taliaferro  v.  Stevenson,  58  N.  J.  L.  165  ;    33  Atl.  383. 

•2.     In  re  Thompson,   2   Browne  297    (Pa.). 

63.     Md.  Brick  Co.  v.  Spilman,  76  Md.  337;    25  Atl.  297;    35  A.  S.  R. 

431. 
«4.     JoBlyn  v.  Smith,  2  N.  Dak.  53 ;    49  N.  W.  382. 

Peck  v.  Bridwell,  10  Mo.  App.  524. 

Howe  v.  Kindred,  42  Minn.  433  ;    44  N.  W.  311. 

Ford  v.  Wilson,  85  Ga.  109;    11  S.  E.  559. 

Montandon  v.  Deas,  14  Ala.  46. 

Smith,  Etc.  Co.  v.  Butts,  72  Miss.  269 ;    16  So.  242. 


164  THE  LAW  OF  WAIVER 

authorities,  however,  hold  to  the  proposition  that  the 
acceptance  of  such  security  is  an  implied  waiver  of 
the  right  to  a  lien65. 

Sec.  167.  A  difficulty  sometimes  arises  as  to 
what  is  and  what  is  not  collateral  security.  Thus,  the 
promise  of  a  subsequent  purchaser  of  the  land  to  pay 
the  lien -claim  is  not  collateral  security66.  And  a 
husband's  contract  as  agent  for  his  wife  for  materials 
to  be  used  in  a  building  on  her  land  and  his  personal 
promise  to  pay  therefor  is  not  collateral  security67 ; 
neither  is  the  taking  of  a  partnership  note  indorsed 
by  one  of  the  partners  individually68 ;  nor  the  giving 
of  the  individual  note  of  the  president  of  a  corpor- 
ation for  the  company's  debt69.  On  the  other  hand, 
the  taking  of  a  firm  note  for  the  individual  debt  of 
one  of  the  partners  for  which  deb^  a  material -man 
is  entitled  to  a  lien,  is  such  collateral  security  as 
waives  the  lien70.  And  a  cash  deposit  to  insure 
performance  of  the  contract  is  collateral  security71. 
But  the  taking  of  a  note  with  personal  indorsements 
is  not  a  waiver72,  although  taking  the  note  of  a  third 
person  in  payment  is73.  In  Nebraska  it  is  held  that 
the  taking  of  a  chattel  mortgage  for  the  lien  claim  is 


(5.     Grant  v.  Strong,  18  Wall.  623   (U.  S.). 
Clark  v.  Moore,  64  111.  279. 
Ehler  v.  Elder,  51  Miss.  499. 
Willison  v.  Douglas,  66  Md.  99;    6  Atl.  530. 
Bailey  v.  Adams,  14  Wend.  201   (N.  Y.). 

66.  Mervin  v.  Sherman,  9  la.  331. 

67.  Bissell  v.  Lewis,  56  la.  231 ;    9  N.  W.  177. 

68.  Millikin  v.  Armstrong,  17  Ind.  456. 

69.  Allis  v.  Meadow,  etc.,  67  Wis.  16;    29  N.  W.  543;    and  30  N.  W. 

300. 

70.  Croskey  v.  Corey,  48  111.  442. 

VI.     Harrison  Co.  v.  Council  Bluffs  Co..  25  Fed.  170. 
Shickle  Co.  v.  Council  Bluffs  Co.,  38  Fed.  18. 

72.  Smith,  Etc.  Co.  v.  Butts,  72  Miss.  269;    16   So.  242. 

73.  Button  v.  Ins.  Co.,  29  N.  H.  153. 


LIENS  165 

collateral  security,  but  that  the  taking  of  such  secur- 
ity is  not  a  waiver  of  the  lien74 ;  but  in  Illinois  the  tak- 
ing of  a  chattel  mortgage  is  held  a  waiver75.  The 
better  reasoning  is  with  the  authorities  holding  that 
the  taking  of  collateral  security  for  the  lien  claim  is  a 
waiver  of  the  right  to  the  lien ;  for  undoubtedly  such 
security  is  inconsistent  with  an  intention  to  preserve 
and  rely  upon  the  lien. 

F.  BY  PERSONAL  JUDGMENT,  AT- 
TACHMENT OR  EXECUTION:— Sec.  168.  Ob- 
taining a  personal  judgment  against  a  Hen-debtor  is 
not  a  waiver  of  the  lien76.  This  was  held  true  where 
the  parties  agreed  that  the  judgment  should  be  a 
lien  against  the  property,  although  the  agreement 
was  invalid77.  And  an  action  on  a  note  taken  as 
collateral  security  has  been  held  no  waiver  of  the 
lien78,  although  there  can  be  but  one  satisfaction. 
The  fact,  however,  that  there  is-  a  suit  pending  on  the 
deibt  is  no  bar  to  an  action  to  enforce  the  lien79.  An 
action  in  assuinpsit  is  not  a  waiver  of  the  right  to 
enforce  a  lien80.  Mr.  Boisot  cites  several  cases  in 
support  of  the  proposition  that  an  action  at  law  on 


74.  Hoagland   v.   Lusk,    33   Neb.   376;     50   N.   W.    162;    29   A.   S.  R. 

485;    citing: 

Ford  v.  Wilson,  85  Ga.  109;    11  S.  E.  559. 
Howe  v.  Kindred.  42  Minn.   433  ;    44  N.  W.  311. 
Hinchman  v.  Lyband,  14  Serg.  &  R.  32    (Pa.). 
Montandon  v.  peas,  14  Ala.  33:    48  A.  D.  84. 

75.  Kinzey  v.  Thomas,  28  111.  505. 

76.  German,  Etc.  Assoc.  v.  Wagner,  61  Cal.  349. 
Marean  v.  Stanley,  5  Colo.  App   335  ;    38  Pac.  395. 
Vandyne's  Ex'rs.  v.  Vanness,  5  N.  J.  Eq.  485. 

U.  S.  Blowpipe  Co.  v.  Spencer,  40  W.  Va.  698;    21  S.  E.  769. 

77.  Kirkwood  v.  Hoxie,  95  Mich.  62;    54  N.  W.  720;    35  A.  S.  R.  549. 

78.  Gambling  v.  Haight,  59  N.  Y.  354. 
Dickson  v.  Corbet,  11  Nev.  277. 

79.  Parmlee  v.  Tenn.,  Etc.  Co.,  81  Tenn.  600. 

80.  Spence  v.  Etter,  8  Ark.  69. 


166  THE  LAW  OF  "WAIVES 

the  lien  debt  and  a  personal  judgment  therein  are 
not  a  waiver  of  the  lien,  and  the  lien  does  not  become 
merged  in  the  judgment81.  It  is  held,  however,  that 
the  right  to  a  lien  is  a  special  privilege  and  that  by 
joining  the  lien  claim  with  other  demands  the  lien  is 
lost  or  waived82.  The  above  propositions,  however, 
have  apparently  been  contradicted  in  Missouri83. 

Sec.  169.  So  it  is  held  that  the  procuring  an 
attachment  is  not  a  waiver  of  the  right  to  assert  a 
lien.  It  is  said  that  the  lien  is  not  waived  nor  for- 
feited by  causing  an  attachment  to  be  issued  and 
levied  upon  the  property  of  the  debtor  to  secure  the 
same  demand,  as  the  remedies  are  cumulative  and 
may  be  pursued  at  the  same  time.  In  case,  however, 
of  an  attempt  to  pursue  them  in  separate  actions,  the 
party  might  be  put  to  his  election,  but  it  is  no  de- 
fense to  an  action  to  enforce  the  lien  that  in  a  pre- 
vious suit  for  the  same  debt  an  attachment  was  is- 
sued and  levied  upon  the  property  of  the  debtor, 
especially  where  such  suit  was  dismissed  and  nothing 
realized  by  the  attachment84. 


81.  Boisot,  Mech.  Liens,  Sec.  709 : 
Cheshire  Ins.  Co.  v.  Stone,  62  N.  H.  365. 
Anderson  v.  Huff,  49  N.  J.  Eq.  349  ;    23  Atl.  654. 
Fisher   v.   Rush,   71    Pa.   St.    40. 

Crean  v.  McFee,  2  Miles  214    (Pa.). 
Fox  v.  Seal,  22  Wall.  424  (U.  S.). 

82.  Bickwell  v.  Trickey,  34  Me.   273;    followed  in: 
McCrillis  v.  Wilson,  34  Me.  286  ;    56  A.  D.  655. 
Perkins  v.  Pike,  42  Me.  141 ;    66  A   D.  267. 
Union  Slate  Co.  v.  Tilton,  73  Me.  212. 

83.  Hayden  Slate  Co.  v.  Nat'l.,  Etc.  Co.,  62  Mo.  App.  569. 

84.  Brenan  v.  Swasey,  16  Cal.  140;    76  A.  D.  507,  cited  in: 

Salt   Lake  Co.   v.   Ibex   Co.,   15  Utah    440;     49   Pac.    768;     62   A. 

S.  R.  944,  citing  also: 

West  v.  Fleming,  18  111.  248  ;     68  A.  D.  539. 
Germania  Assoc.  v.  Wagner,  61  Cal.  349. 


LIENS  167 

It  has  been  held  that  the  issuance  of  a  general 
execution  is  a  waiver  of  the  right  to  enforce  a  me- 
chanic's lien85,  for  thereby  the  creditor  manifests  an 
intention  to  abandon  the  lien  on  specific  property  and 
rely  wholly  on  the  personal  responsibilty  of  the 
debtor. 

G.  MISCELLANEOUS  WAIVERS :— Sec.  170. 
An  agreement  of  a  material-man  to  look  solely  to  the 
contractor  for  payment  for  lumber  going  into  a  build- 
ing has  been  held  to  waive  the  right  to  assert  a 
mechanic's  lien  for  the  material  so  furnished86.  An 
agreement  not  to  file  a  lien  on  a  building  for  work 
done  thereon  is  a  complete  waiver  even  though  the 
owner  fail  to  make  payment  as  provided  in  the  con- 
tract87. It  is  said  that  a  provision  that  no  liens 
shall  be  filed  by  any  sub-contractor  or  any  other  per- 
son is  not  a  waiver  of  the  right  to  a  lien  accruing  to 
the  contractor88 ;  although  in  the  same  state  it  is  said 
that  a  contractor  waives  his  own  right  to  a  lien  when 
he  agrees  that  he  will  not  permit  any  liens  to  be 
filed  against  the  building  for  six  months89.  'Submis- 
sion of  the  matter  in  dispute  to  arbitration  is  a 
waiver  of  the  right  to  a  lien90.  But  an  agreement  to 
take  a  mortgage  is  no  waiver,  especially  if  the  agree- 


86.     Kirk  v.  Taliaferro,  16  Miss.  754. 

86.  Sodinl  v.  Winter,  32  Md.  130. 
Murray  v.  Earle,  13  S.  Car.  871. 
Isenman  v.  Fugate,  36  Mo.  App.   66. 
Shropshire  v.  Duncan,  25  Neb.  485;    41  N.  W.  403. 

87.  Mathews  v.  Young,  16  Misc.  Rep.  525;    40  N.  Y.  Supp.  26. 
Brzezinski  v.  Neeves,  93  Wis.  567;    67  N.  W.  1125. 

88.  Commonwealth,  Etc.  Co.  v.  Ellis,  5  Pa.  Dist.  R.  33. 

89.  Scheid  v.  Rapp,  121  Pa.  St.  593 ;    15  Atl.  652. 

90.  N.  Y..  Etc.  Co.  v,  Schneider,  15  Daly  15;    IN.  Y.  Supp.  441;    IS 

Civ.  Proc.  R.  30. 


168  THE  LAW  OP  WAIVER 

ment  is  never  executed91,  and  the  same  is  true  where 
notes  are  to  be  given92.  An  agreement  to  extend  the 
time  for  payment  beyond  the  period  within  which 
suit  must  be  brought  to  enforce  the  lien,  is  a  waiver 
of  the  lien93.  But  the  rule  is  otherwise  if  the  exten- 
sion be  within  such  period94.  Beleasing  part  of 
property  subject  to  a  lien  is  not  a  waiver  as  to  that 
not  released95.  If  one  having  a  lien  on  property 
join  in  a  conveyance  of  the  property,  he  waives  his 
lien96.  So,  if  the  owner  promise  to  pay  a  sub-con- 
tractor and  the  latter  fail  to  file  a  lien,  he  thereby 
waives  it97.  But  an  agreement  to  take  property  in 
payment  is  not  a  waiver98.  Eetaining  title  for  the 
purchase  price  of  machinery  is  not  a  waiver  of  a  lien 
on  the  land  on  which  it  is  placed99.  Neglecting  to 
perfect  a  lien  or  to  file  suit  on  it  in  time  is  a  waiver 
of  the  lien100.  Proving  the  debt  in  bankruptcy  and 


91.  Barnard  Co.  v.  Galloway,  5  S.  Dak.  205 ;    58  N.  W.  565. 
Gardner  v.  Hall,  29  111.  277. 

92.  Globe  Co.  v.  Doud,  47  Mo.  App.  439. 

Van  Stone  v.  Stillwell  Co.,  142  U.  S.  128;    12  Sup.  Ct.  181 ;    35  L,. 
Ed.  961. 

93.  Hardin  v.  Marble,  13  Bush  58. 
Green  v.  Fox,  7  Allen  85   (Mass.). 
Scudder  v.  Balkam,  40  Me.  291. 

94.  Paddock  v.  Stout,  121  111.  571 ;    13  N.  E.  182. 
Schmidt  v.  Gllson,  14  Wis.  514. 
Ashdown  v.  Woods,  31  Mo.  465. 

Bodley  v.  Denmead,  1  W.  Va.  249. 
Montandon  v.  Deas,  14  Ala.  46. 

95.     Rellly  v.  Williams,  47  Minn.  590;  50  N.  W.  826. 
Carr  v.  Hooper,  48  Kans.  253 ;    29  Pac.  398. 

96.  Alexander  v.  Slavens,  7  B.  Mon.  356  (Ky.). 

97.  Andre  v.  Bodman,  13  Md.  255. 

98.  Pierce  v.  Marple,  148  Pa.  St.  69 ;    23  Atl.  1008. 

99.  Case  Co.  v.  Smith,  et  al.,  40  Fed.  339 ;  5  L.  R.  A.  231. 
Great  West.  Co.  v.  Hunter,  15  Neb.  32 ;    16  N.  W.  759. 
Cooper  v.  Cleghorn,  50  Wls.  113 ;    6  N.  W.  491. 
Chicago  Co.  v.  Union  Co.,  109  U.  S.  719 ;    27  L.  Ed.  1088. 

100.     Hughes  v.  Lansing,  34  Oreg.  118;    55  Pac.  95;    75  A.  S.  R.  574. 


LIENS  169 

receiving  a  dividend  thereon  do  not  constitute  a 
waiver  of  the  lien1.  Merely  accounting  and  adjust- 
ing the  amount  due  cannot  be  construed  as  a  waiver 
of  the  right  to  a  lien  for  such  amount2. 

Sec.  171.  A  mechanic's  lien  may  be  waived  by 
an  agent3.  And  a  waiver  by  a  contractor  has  been 
held  a  bar  to  the  right  of  a  sub-contractor  to  enforce 
a  lien,  the  former  having  contracted  with  the  owner 
that  no  liens  should  be  placed  on  the  building4.  For 
it  is  said  "It  is  the  plain  and  obvious  duty  of  one 
who  deals  with  an  alleged  contractor  to  know  the 
relation  he  bears  to  the  owner;  failing  in  this,  he 
furnishes  labor  and  material  at  his  peril '  '5. 

4.  VENDORS'  LIENS  :-^Sec.  172.  Many 
years  ago  Mr.  "Washburn  had  this  to  say  about  the 
waiver  of  a  vendor's  lien:  "This  lien  will  be  defeat- 
ed if  the  vendor  do  any  act  manifesting  an  intention 
not  to  reply  on  the  land  as  security.  What  act  is  to 
be  deemed  to  work  a  waiver  of  a  vendor's  lien  it  may 
not  be  easy  to  define.  But  it  has  been  held  that  the 
taking  of  the  vendee's  note  or  bond  for  the  purchase- 
money  is  not  such  an  act,  nor  his  check  which  is  not 
presented  or  paid,  nor  a  renewal  of  the  vendee's 
note.  It  can  only  be  waived  by  taking  collateral  se- 
curity, or  by  an  express  agreement  to  that  effect. 
But  the  acceptance  of  a  distinct  and  separate  se- 


1.     Streeper  v.  McKee,  86  Pa.  St.  188. 

In  re  Hope  Min.  Co..  Fed.  Gas.  No.  6681. 
*.     Dennis  v.  Smith,  35  Minn.  494;   38  N.  W.  695. 

3.  Hughes  v.  Lansing,  34,  Oreg.  1.18;    55  Pac.  95:    75  A.  S.  R.  574. 

4.  Nice  v.  Walker,  153  Pa.  St.  123;    25  Atl.  1065;    34  A.  S.  R.   6S8. 
Caswell,  Etc.  v.  O'Brien,  156  Pa.  St.  172;    27  Atl.  131;    36    A..  S. 

R.  30. 
Waters  v.  Wolf,  162  Pa.  St.  1B3 ;    29  Atl.  646:    42  A.  S.  R.  815. 

5.  Schroeder  v.  Galland,  34  Pa.  St.  277;    19  Atl.   632;    19  A    S.  R. 

891. 


170  THE  LAW  OF  WAIVER 

curity  for  the  purchase-money  is  a  waiver,  as,  for 
instance,  a  mortgage  or  other  property,  or  a  bond 
or  note  with  a  surety  or  indorser,  or  a  deposit  of 
stock.  So  where  the  vendor  took  notes  for  the  pur- 
chase-money and  sold  these,  and  the  purchaser  took 
new  notes  from  the  maker;  and  the  taking  of  notes 
from  a  third  party  for  the  purchase-money  is  a  waiv- 
er of  the  lien,  although  it  be  the  note  of  the  husband 
when  the  wife  is  the  purchaser,  provided,  in  these 
cases,  the  presumption  of  a  waiver  is  not  rebutted 
by  satisfactory  evidence  that  it  was  intended  that 
the  vendor  should  retain  the  lien"6. 

Sec.  173.  The  right  of  a  vendor  to  a  lien  for 
the  purchase-money  exists  only  in  a  part  of  the 
states.  And  in  those  states  recognizing  the  right  it 
is  said  that  they  are  not  to  be  much  encouraged  or 
extended  in  their  application  beyond  the  require- 
ments of  settled  principles  of  equity7.  And  the 
question  of  the  waiver  of  such  a  lien  is  one  of  in- 
tention to  be  drawn  from  the  acts  or  language  of  the 
party  entitled  to  the  lien.  The  lien  is  not  such  an 
interest  in  land  as  to  require  an  instrument  in  writ- 
ing to  waive  it8.  It  is  a  mere  incident  of  the  contract 
of  sale  implied  by  law,  and  it  may  be  waived  or 
abandoned  bv  any  suitable  act  or  oral  declaration 
showing  an  intention  to  do  so  on  the  part  of  one  com- 
petent to  contract9.  The  principles  announced  by 


6.  2  Washburn,  Real  Property,  507. 

7.  Cowl  v.  Varnum.  37  111.  181. 

8.  Anderson  v.  Donnell,  66  Ind.  150. 
Hightower  v.  Rigsby,  56  Ala.  126. 
Stuart  v.  Harrison,  52  la.  511. 

».  Woodall  v.  Kelley,  85  Ala.  368 ;  5  So.  164. 
Ramage  v.  Towles,  85  Ala.  588;  6.  So.  342. 
Neal  v.  Speigle,  33  Ark.  63. 


LIENS  171 

Mr.  Waskburn  as  noted  above  have  been  modified, 
and  different  rules  have  been  announced  in  some 
cases,  but  in  the  main  they  have  been  affirmed.  Thus, 
it  is  said  that  the  taking  of  the  individual  note,  bond 
or  other  covenant  of  the  grantee  will  not  indicate  a 
waiver  of  the  lien10.  But  the  lien  is  waived  by  the 
taking  of  collateral  security11,  mortgage12,  or  other 
property13,  liability14,  or  note15  of  a  third  person 
whether  collectible  or  not16,  and  also  by  the  negotia- 


Stevens  v.  Rainwater,  4  Mo.  App.  292. 

Coles  v.  Withers,   33   Grat.   186    (Va.). 

Selna  v.  Selna,  125  Cal.  357 ;    58  Pac.  16 ;    73  A.  S.  R.  47. 

Wilson  v.  Lyon,  51  111.  166. 

Parker  v.  Lowell,  24  Tex.  238. 

Carrico  v.  Bank,  33  Md.  242. 

Buntin  v.  French,  16  N.  H.  692. 

Redford  v.  Gibson,  12  Leigh  332   (Va.). 

Selby  v.  Stanley,  4  Minn.  65. 

Griffin  v.  Blanchard,  17  Cal.  70. 

10.  Winn  v.  Lippincott,  125  Mo.  528 ;    28  S.  W.  998. 

Maroney  v.  Boyle,  141  N.  T.  462;    36  N.  E.  511;    38  A.  S.  R.  8*1. 
Dowdy  v.  Blake,  60  Ark.  205;    6  S.  W.   897. 
Conlee  v.  Conlee,  87  Ind.  249. 
Baum  v.  Grigsby,  21  Cal.  172  ;    81  A.  D.  159. 
Fish  v.  Howland,  1  Paige  30 ;    2  L.  Ed.  549. 

Mansfield  v.  Dameron,  42  W.  Va.  794;    26  S.  E.  527;    57  A.  S.  R. 
884. 

11.  Dodge  v.  Evans,  43  Miss.  570. 
Mayham  v.  Coombs,  14  Oh.  428. 
Brown  v.  Oilman,  4  Wheat.  255   (U.  S.). 
Durette  v.  Briggs,  47  Me.  356. 

Shelby  v.  Perrin,  18  Tex.  515. 

12.  Pease  v.  Kelley,  3  Oreg.  417. 

Lagow  v.  Badolett,  1  Blackf.  416 ;    12  A.  D.  258. 

Houck  on  Liens,  Sec.  202. 

Avery  v.  Clark.  87  Cal.  619  ;    25  Pac.  919 ;    22  A.  S.  R.  JT1. 

Briscoe  v.  Callahan,  77  Mo.  134. 

13.  Manly  v.  Slason,  21  Vt.  277. 
Ortman  v.  Plummer,  52  Mich.  76. 
Hummer  v.  Schott,  21  Md.  311. 
Chic.  Land  Co.  v.  Peck,  112  111.  408. 

14.  Fonda  v.  Jones,  42  Miss.  792. 
Porter  v.  Dubuque,  20  la.  440. 

16.     Cresap  v.  Minor,  63  Tex.  485. 

16.     Kendrick  v.  Eggleston,  56  la.  128;    8  N.  W.  786. 


THE  LAW  or  WAIVER 

tion  of  the  individual  note  of  the  purchaser17,  al- 
though the  majority  of  courts  modify  this  last  rule 
to  the  extent  of  saying  that  the  lien  is  not  ex- 
tinguished 'by  such  transfer  if  the  liability  of  the 
transferor  as  indorser  yet  remain18,  and  if  the  in- 
dorser  be  compelled  to  take  the  note  up  at  maturity, 
the  lien  revives  in  his  favor19.  Failing  to  enforce 
the  lien  for  a  reasonable  time  is  presumptively  a 
waiver20. 

Sec.  174.  Procuring  a  judgment  for  the  unpaid 
purchase-price  of  land  is  a  waiver  of  the  right  to  a 
vendor's  lien21,  although  it  is  said  that  this  is  not 
the  principle  held  by  a  majority  of  courts22.  Good 
reason  seems  to  demand  that  such  a  judgment  be 
held  a  waiver  of  the  lien,  not  on  account  of  the  re- 
lations between  the  vendor  and  vendee  so  much  as 
on  account  of  the  rights  of  third  parties  who  might 
be  led  to  believe  by  reason  of  such  judgment  that  the 
vendor  would  not  assert  the  lien.  This  is  especially 
true  where  execution  has  been  issued  on  the  judg- 
ment23. But  it  has  been  held  that  the  filing  of  a  claim 

17.  Richards  v.  Learning,  27  111.  431 ;   81  A.  D.  240. 
Elder  v.  Jones,  85  111.  384. 

Moshier  v.  Meek,  80  111.  79. 

18.  Richards  v.  Learning:,  27  111.  431;    81  A.  D.  240. 
Baum  v.  Grigsby,  21  Cal.  172  ;    81  A.  D.  154. 

19.  Rogers  v.  James,  33  Ark.  77. 
Kelley  v.  Payne,  18  Ala.  371. 
Cotton  v.  McGehee,  54  Mis*.  510. 
Lindsey  v.  Bates,  42  Miss.  357. 

White  v.  Williams,  1  Paige  502 ;    2  L.  Ed.  721. 
Bush  v.  Kinsley,  14  Oh.  20. 
80.     Trustees  v.  Wright,  11  111.  603. 

21.  Craus  v.  Co.  Com.,  87  Ind.  162. 

22.  Chapman  v.  Lee,  64  Ala.  483. 
Palmer  v.  Harris,  100  111.  276. 

Dowdy  v.  Blake.   50  Ark.  205  :   6  N.  W.   897  :   7  A.  S.  R.   88. 
85.     Telter  v.  Fitts,  113  Ind.  34:    14  N.  E.  707. 
Clark  v.  Stilson,  36  Mich.  48?. 
Dickason  v.  Eby,  73  Mo.  133 
Dlcakson  v.  Fisher,  137  Mo.  342;    37  S.  W.  1114. 


LIENS  17$ 

for  unpaid  purchase-money  against  a  decedent's  es- 
tate is  not  a  waiver  of  a  vendor's  lien24.  And  the 
issuing  of  an  attachment  on  land  for  a  debt  for 
which  the  plaintiff  has  a  right  to  a  vendor's  lien  on 
the  same  land  is  not  a  waiver  of  the  right  to  the 
Ken25. 

In  California  a  vendor  took  a  mortgage  back  on 
the  land  sold  but  the  mortgage  was  defective  and  un- 
availing. He  then  sought  to  foreclose  his  vendor's 
lien.  In  holding  the  lien  waived,  the  court  said :  The 
question  in  this  case  is  directly  presented  whether  in 
this  state  a  vendor's  lien  exists  when  a  mortgage  se- 
curity is  taken  for  the  purchase-money.  Decisions  of 
the  various  courts  have  'been  numerous  on  this 
branch  of  jurisprudence,  and  are  not  harmonious. 
The  better  rule,  supported  by  the  weight  and  num- 
ber of  authorities,  is  to  hold  the  silent  lien  of  the 
vendor  extinguished  whenever  the  vendor  manifests 
an  intention  to  abandon  or  not  to  look  to  it ;  and  it 
is  held  that  he  does  this  whenever  he  takes  other 
and  independent  security  upon  the  same  land,  or  a 
portion  of  the  same  land,  or  other  land.  When  h« 
looks  to  other  security  he  loses  his  tacit  lien"26. 

When  a  waiver  of  a  vendor's  lien  is  asserted, 
the  burden  is  upon  the  purchaser  to  prove  it27. 


84.     Selna  v.  Selna,  125  Cal.  357;    58  Pac.  16;    73  A.  S.  R.  4T. 
Hays  v.  Horine.  12  la.  61 ;    79  A.  D.  518. 

25.  Taylor  v.  Fryar,  18  Tex.  Civ.  App.  266 ;    44  S.  W.  183. 

26.  Hunt  v.  Waterman,  12  Cal.  301. 

Baum  v.  Grigsby,   21  Cal.  172 ;    81  A.  D.  153. 
Woodall  v.  Kelley,  85  Ala.  368;    5  So.  164;    7  A.  S.  R.  57. 
J7.     Hays  v.  Horine,  12  la.  61 ;    79  A.  D.  518. 

Crampton  v.  Prince.  83  Ala.  246 ;    3  So.  519  ;    S  A.  S.  R.  711. 


174  THE  LAW  OP  WAIVER. 

CHAPTER  6. 

STATUTE  OF  FRAUDS. 

Section 

1.  IN  GENERAL 175 

2.  HOW  WAIVER  OF  THE  STATUTE  MAY  OCCUR  177 

3.  EETFECT  OP  WAIVING  THE  STATUTE «.  181 

1.  IN  GENERAL  :--Sec.  175.  The  commonly 
accepted  and  professional  use  of  the  term  Statute 
of  Frauds  embody  sections  1,  2,  3,  4  and  17  of  the 
English  Statute  29  Car.  II,  Cap.  3,  enacted  in  1677. 
Under  this  statute  the  following  contracts,  to  be 
valid,  must  'be  in  writing  and  signed  by  the  party  to 
be  charged  or  'by  his  legally  authorized  agent:  (1) 
Those  creating  or  conveying  estates  in  land,  both 
legal  and  equitable,  except  leases  for  a  period  not 
exceeding  three  years  where  the  rent  reserved  to  the 
landlord  amounts  to  two-thirds  the  value  of  the  es- 
tate leased;  (2)  the  assigning,  granting  or  surrend- 
ering of  any  soich  interests  in  real  estate;  (3)  an  ad- 
ministrator or  executor  contracting  to  pay  damages 
out  of  his  own  estate ;  (4)  a  contract  to  answer  for 
the  debt,  default  or  miscarriage  of  another  person; 
(5)  an  agreement  made  upon  the  consideration  of 
marriage;  (6)  a  contract  that  is  not  to  be  performed 
within  a  year  from  the  making  thereof;  (7)  con- 
tracts for  the  sale  of  goods,  wares  and  merchandise 
for  more  than  ten  pounds  sterling.  These  provi- 
sions, or  at  least  their  substance,  have  'been  enacted 
as  the  law  of  nearly  every  state  in  the  union,  with 
additions  here  and  there,  following  the  same  policy 
and  purpose  as  the  English  Statute. 

Sec.  176.  The  statute  is  a  complete  defense  to 
an  action  on  a  parol  contract  required  by  it  to  be  in 


STATUTE  OF  FRAUDS  17'5l 

| 

•writing.  But  to  constitute  such  defense  the  statute 
must  be  used  properly  and  at  the  proper  time.  For, 
like  many  other  defenses,  it  is  not  self-operative  or 
'automatic,  and  like  a  shield  is  efficacious  only  when 
put  in  the  front.  A  party  entitled  to  the  benefit  of 
the  statute  may,  if  he  see  fit,  forego  its  benefits.  And 
he  may  by  his  conduct  and  without  any  apparent  in- 
tention to  so  do,  waive  those  benefits — such  inten- 
tion, however,  being  imputed  to  him  from  his  con- 
duct. And  when  once  waived,  the  statute  as  to  him 
becomes  powerless  ever  after. 

2.  HOW  WAIVER  OF  THE  STATUTE  MAY 
OCCUR: — 'Sec.  177.  In  an  action  on  a  contract  re- 
quired by  the  statute  to  be  written,  it  is  not  neces- 
sary for  the  plaintiff's  pleadings  to  show  that  the 
contract  was  a  written  one28.  This  is  a  matter  of 
proof  and  a  matter  to  be  invoked  only  by  the  defend- 
ant, for  it  is  a  personal  right  'belonging  to  the  latter 
to  rely  on  the  protection  of  the  statute,  and  if  he  so 


28.     Strouse  v.  Etting,  110  Ala.  132  ;    20  So.  123. 

McMenomy  v.  Talbot,  84  Cal.  279 ;    23  Pac.  1099. 

Ruth  v.  Smith.  29  Colo.  154 ;    68  Pac.  278. 

Cannon  v.  Windsor,   1  Hust.   143    (Del.). 

Anderson  v.  Hilton,  121  Ga.  688. 

Speyer  v.  Desjardinis,  144  111.  641;    32  N.  E.  283. 

Hamilton  v.  Thirston,  93  Md.  213  ;    48  Atl.  709. 

Kroll  v.  Diamond  M.  Co..  106  Mich.  127 ;    63  N.  W.  981. 

Schurtz  v.  Lieber,  79  Miss.  257 ;    30  So.  649. 

Phillips  v.  Hardenburg,  181  Mo.  463 ;    80  S.  W.  891. 

Schmid  v.  Schmid,  37  Neb.  629  ;    56  N.  W.  207. 

Walker  v.  Richards,  41  N.  H.  388. 

Whitehead  v.  Burgess,  61  N.  J.  L.  75 ;    38  Atl.  802, 

Etting  v.  Vanderlyn,   4  Johns.   237. 

Groce  v.  Jenkins,  28  S.  Car.  172 ;    6  S.  E.  352. 

Townsend  v.  Sharp,   2   Tenn.   192. 

Gonzales  v.  Chartier,  63  Tex.  36. 

Nat'l.  Bank  v.  Kinner,  1  Utah  100. 

Hotchkiss  v.  Lodd.  36  Vt.  593. 

Skinker  v.  Armstrong,   86  Va.   1011;    11  S.  E.  977. 


176  THE  LAW  OF  WAIVES 

desire  he  may  remain  silent  as  to  the  statute,  in 
which  event  he  will  be  held  to  have  waived  it.  The 
law  presumes  that  its  requirements  have  been  ful- 
filled by  parties  in  making  their  contracts,  and  a 
plaintiff  is  not  forced  to  do  more  than  to  simply 
declare  upon  his  contract ;  but  it  is  incumbent  upon 
the  defendant  to  plead  and  prove  that  his  contract 
with  the  plaintiff  was  not  in  accordance  with  the  re- 
quirements of  the  statute29,  unless  the  pleadings  of 
the  plaintiff  do  in  fact  show  on  their  face  that  the 
contract  does  not  fulfill  the  requirements,  in  which 
event  the  defendant  may  defeat  the  action  by  de- 
murrer30. 

Sec.  178.  Where  the  contract  sued  on  does  not 
appear  from  the  face  of  the  complaint  to  be  within 
the  statute  of  frauds,  the  defendant  can  take  ad- 
vantage of  the  statute  only  by  asserting  it  in  his 
answer,  and  unless  he  specially  plead  it  he  will  be 
deemed  to  have  waived  its  protection31 .  In  an  action 


29.     Osborn  v.  Endicott,  6  Cal.  149. 

Broder  v.  Conklin,  77  Cal.  33  ;    19  Pac.  611. 
Burt  v.  Williams,   28  Cal.  632. 

80.  Beadle  v.  Seat.  102  Ala.  532 ;    6  So.  243. 
Barr  v.  O'Donnell,  76  Cal.  469;    18  Pac.  429. 
Tynon  v.  Despaln,  22  Colo.  240 ;    43  Pac.  1039. 
Goldstein  v.  Nathan,  57  111.  App.  289. 
Wiseman  v.  Thompson  (la.)  ;  103  N.  W.  346. 

Smith  v.  Theobald,  86  Ky.  141;    9  Ky.  L.  R.  449;    6  8.  W.  394. 

Lawrence  v.  Chase,  54  Me.  196. 

Roth  v.  George,  118  Mo.  556;    24  S.  W.  176. 

Garnner  v.  Stubblefleld,  5  Tex.  552. 

Dry  Goods  Co.  v.  Box,  13  Utah  494  ;    45  Pac.  689. 

81.  Tynon  v.  Despaln,  22  Colo.  240 ;    43  Pac.  1039. 
Seymour  v.  Mitchell,  2  Root  145   (Conn.). 
Johnson  v.  Latlmer,  71  Ga.  470. 

Tift  v.  Wright,  113   Ga.  681 ;    39  S.  E.  508. 
Bowman  v.  Alnslee,  1  Idaho  644. 
Hogan  v.  Easterday,  58  111.  App.  45. 
Bragg  v.  Olson,  128  111.  540 ;    21  N.  E.  619. 


STATUTE  OF  FRAUDS  177 

on  a  contract  required  by  the  statute  to  'be  in  writ- 
ing, however,  it  is  incumbent  upon  plaintiff  to  prove 
the  contract  by  written  evidence  unless  the  defend- 
ant has  in  some  way  waived  it 33.  The  defense  of  the 
statute  is  waived  unless  positively  set  up  and  relied 
upon,  but  it  has  been  said  that  it  may  be  taken  ad- 
vantage of  under  the  general  issue34. 

Sec.  179.  The  defense  of  the  statute  of  frauds 
is  a  personal  one  to  the  promissor,  and  he  may  take 
advantage  of  its  protection  or  not,  the  choice  rest- 
ing  'solely  with  him35.  He  may  admit  the  making  of 
the  contract  sued  on  and  yet  not  forego  his  right  to 
object  to  it  as  failing  to  comply  with  the  statute3*. 
But  where  the  defendant  admits  the  making  of  the 
oral  contract  sued  on,  he  must  plead  the  statute  or 


Miller  v.  Wilson,  146  HI.  623 ;    34  N.  E.  1111. 
Maybee  v.  Moore,  90  Mo.  340  ;    2  S.  W.  471. 
Farrar  v.  Patton,  20  Mo.  81. 
Fee  v.  Sharkey,  59  N.  J.  Eq.  284 ;    44  Atl.  673. 
Barrett  v.  Johnson,  77  Hun  527 ;    60  N.  Y.  St.  271. 
Mathews  v.  Mathews,  154  N.  T.  288 ;    48  N.  E.  631. 
Woods  v.  Dille,  11  Oh.  45.5. 
Watson  v.  Erb,  33  Oh.  St.  35. 
Houser  v.  Lament,  55  Pa.  311. 

Barnes  v.  Coal  Co.,  101  Tenn.  354 ;    47  S.  W.  493. 
League  v.  Davis,  53  Tex.  9. 
Adams  v.  Patrick,  30  Vt.  516. 
Liversey  v.  Liversey,  30  Ind.  398. 
Lawrence  v.  Chase,  54  Me.  196. 
Llvlnstone  v.  Murphy,  187  Mass.  315. 
82      Eaves  v.  Vial,  98  Va.  135;    34  S.  E.  978. 
Guynn  v.  McCauley,  32  Ark.  97. 

83.  Wynn  v.  Garland,  19  Ark.  34. 
Douglass  v.  Snow,  77  Me.  91. 

84.  Young  v.  Ledford,  99  Mo.  App.  565  ;    74  S.  W.  448. 
Beckmann  v.  Mepham,  97  Mo.  App.  161 ;    70  S.  W.  1094. 

86.     Tregea  v.  Mills,  11  Wyo.  438;    72  Pac.  578;    and  73  Pac.  »0». 

Armour  &  Co.  v.  Ross,  110  Ga.  413 ;    35  S.  E.  787. 

McCoy  v.  Williams,  1  Glim.  (HI.)  584. 
16.     Crockett  v.  Green,  3  Del.  Ch.  466. 

Hollingshead  v.  McKenzie,  8  Ga.  467. 

Douglas  v.  Bunn,  110  Ga.  159  ;    35  S.  E.  339. 


178  THE  LAW  OF  WAIVER 

lie  will  not  be  allowed  to  avail  himself  of  its  benefits 
or  to  question  the  proceeding  on  that  ground37.  On 
the  other  hand,  if  the  agreement  itself  be  denied,  the 
statute  may  be  insisted  upon  as  a  bar  without  speci- 
ally pleading  it38.  Such  denial  brings  in  issue  the 
making  of  the  contract,  and  under  the  issue  thus 
made  it  devolves  upon  the  plaintiff  to  show  not  only 
the  making  of  a  contract  but  he  must  further  show 
the  contract  to  be  legal  in  every  respect  or  his  action 
must  fail.  The  action  will  not  thus  fall  of  its  own 
weight,  however.  The  defendant  must  be  diligent 
in  compassing  its  downfall.  He  must  make  his  ob- 
jections at  the  proper  time ;  for  while  it  is  held  that 
a  denial  of  the  making  of  the  contract  without  say- 
ing anything  about  the  statute  of  frauds  is  not  a 
waiver  of  the  benefit  of  the  statute39,  yet  objections 
to  the  contract  must  be  made  at  the  time  it  is  offered 
in  evidence,  and  it  is  held  that  a  motion  later  to 
strike  it  out  is  of  no  avail40.  And  as  a  failure  of 
the  defendant  to  object  to  obnoxious  evidence  is  a 
waiver  of  the  statute41,  the  oral  contract  cannot  be 
called  into  question  for  the  first  time  in  a  request 


87.     Abba  v.  Smyth,  21  Utah  109  ;    59  Pac.  756. 

Wilson  v.  Sullivan,  17  Utah  341 ;    53  Pac.  994. 

Christiansen  v.  Aldrich,  30  Mont.  446 ;    76  Pac.  lOOf. 

Dean  v.  Dean,  9  N.  J.  Eq.  425. 

2   Story's  Eq.  Jur.  753,   757. 
It.     Ontario  Bank  v.  Root,  Paige  478. 

Battell  v.  Matot,  5  Atl.  479  (Vt.). 

Holt  v.  Brown,  19  N.  W.  235   (la.). 

Gordon  v.  Reynolds,  114  111.  118 ;    28  N.  B.  456. 

Randolph  v.  Frick,  5  Mo.  App.  279. 

Tift  v.  Wight,  113  Ga.  681 ;    39  S.  E.  503. 
S9.     Feeney  v.  Howard,  79  Cal.  525 ;    21  Pac.  984. 

Hackett  v.  Watts,  138  Mo.  552 ;    40  S.  W.  11*. 

Dunn  v.  McCllntock,  64  Mo.  App.  193. 
49.  Livermore,  et  al.  v.  Stine,  43  Cal.  274. 
41.  Sartwell  v.  Sowles,  72  Vt.  270;  48  Atl.  11. 

Holt  v.  Howard.  77  Vt.  49. 


STATUTE  OF  FBATTDS  179 

for  findings42.  A  decree  profconfesso  prevents  the 
operation  of  the  statute43;  and  failure  to  call  the 
court's  attention  to  pleas  in  reliance  on  the  statute 
until  after  verdict  is  a  waiver  of  any  right  to  insist 
upon  it44.  As  the  -benefit  of  the  statute  is  waived 
where  parol  evidence  of  the  contract  is  admitted 
without  objection45,  and  as  the  statute  is  an  optional 
defense,  a  defendant  reiving  upon  it  must  either 
plead  the  same  or  object  to  the  introduction  of  tes- 
timony as  to  the  contract ;  and  he  cannot  permit  the 
introduction  of  such  evidence  without  objection  and 
at  its  close  demur  thereto  on  the  ground  of  the  stat- 
ute46. These  principles  are  true  even  where  the  stat- 
ute is  specially  pleaded  but  evidence  of  the  oral  con- 
tract is  admitted  without  objection47.  And  it  is 
again  said  that  unless  the  statute  is  in  some  way  set 
up  as  a  defense  or  called  to  the  attention  of  the  court 
it  is  deemed  to  have  been  waived48.  If  a  defendant 
attempt  to  show  by  his  evidence  that  no  such  con- 
tract exists  as  alleged  by  the  plaintiff,  he  cannot 
raise  the  question  of  the  statute  of  frauds  for  the 
first  time  by  asking  instructions49.  But  it  is  said  in 
Nebraska  that  "The  failure  to  object  on  a  trial  to 
the  introduction  of  evidence  of  a  parol  agreement 


42.  Porter  v.  Wormser,  et  al.,  94  N.  T.  431. 

43.  Angel  v.  Simpson,  85  Ala.  53  ;    5  So.  758. 

44.  Neider  v.  Fredrich,  69  111.  App.  623. 

45.  Nunez  v.   Morgan,   19   Pac.   753    (Cal.). 

Simis  v.  Wissel,  10  App.  Dlv.  323  ;    41  N.  T.  Supp.  1014. 
Brown  v.  Mfg.  Co.,  46  S.  Car.  415;    24  S.  E.  191. 
Cosand  v.  Bunker,  2  S.  Dak.  294 ;    50  N.  W.  84. 

46.  Nenvirth  v.  Engler,  83  Mo.  App.  420. 
Van  Idom  v.  Nelson,  60  Mo.  App.  523. 

47.  Miller  v.  Harper,  63  Mo.  App.  293. 
Pike  v.  Pike,  69  Vt.  535. 

48.  Leag-ue,  et  al.  v.  Davis,  S3  Tex.  9. 

49.  Royal  Co.  v.  G.  Grocer  Co.,  90  Mo.  App.  it. 


180 

to  re-convey  real  estate  will  not  amount,  under  the 
practice  of  this  state,  to  a  waiver  of  the  right  to  in- 
voke the  statute  of  frauds  as  to  such  an  agreement 
when  the  statute  has  'been  properly  pleaded  as  a  de- 
fense"50. And  the  statute  is  not  waived  by  an  ad- 
mission of  the  making  of  the  contract  and  an  alle- 
gation that  it  was  verbal  and  void  under  the  stat- 
ute81. So,  too,  it  is  not  a  waiver  for  the  defendant 
to  fail  to  object  to  evidence  of  the  contract  prior  to 
evidence  that  the  contract  is  within  the  exception  of 
the  statute52. 

iSec.  180.  A  party  cannot  seek  to  avoid  liability 
on  one  ground  and  then  switch  positions.  And  where 
it  was  admitted  in  an  action  that  the  contract  sued 
on  was  made,  but  a  defense  other  than  failure  to 
comply  with  the  statute  of  frauds  was  relied  on,  the 
benefit  of  the  statute  or  the  right  to  assert  it  was 
thereby  waived53.  So,  after  a  plea  of  the  statute 
had  been  overruled  and  an  answer  was  thereupon 
filed,  the  defense  of  the  statute  was  held  to  have 
"been  waived54.  Where  the  defendant  in  his  answer 
admits  substantially  the  contract  set  out  in  the  peti- 
tion, but  alleges  that  the  plaintiff  has  violated  its 
provisions,  and  there  is  no  plea  of  the  statute,  it 
will  be  held  waived55.  In  an  action  for  commissions 
for  sale  of  real  estate,  defendant  based  his  refusal 
to  pay  on  the  fact  that  he  had  withdrawn  his  prop- 
erty from  the  market ;  he  was  not  permitted  to  after- 


60.  Thomas  v.  Thomas,  et  al.,  67  N.  W.  182    (Neb.). 

61.  Jamison  v.  Hyde,   141   Cal.   109;    74  Pac.  695. 

62.  Benedict  v.  Bird,  103  la.  612;    72  N.  W.  768. 

53.  Christiansen  v.  Aldrlch.  et  al..   30  Mont.   446;     76  Pac.   100T. 

84.  Keatts  v.  Rector.  1  Ark.  391. 

16.  O^nor  v.  Hinp^n.  19  N«b.  472:    27  N.  W.  44?,. 

Davis,  et  al.  v.  Greenwood,  et  al.,  96  N.  W.  526  (Neb.). 


STATUTE  OF  FRAUDS  181 

ward  change  positions  and  allege  that  the  contract 
of  employment  was  void  for  non-compliance  with 
the  statute56.  In  a  suit  for  the  specific  performance 
of  a  contract  for  the  sale  of  land,  the  defendant  will 
be  held  to  have  waived  the  defense  of  the  statute 
of  frauds  unless  he  denies  the  sale  or  pleads  the 
statute57.  An  oral  agreement  for  the  sale  of  land 
should  foe  enforced  where  it  is  shown  to  'be  not  ma- 
terially different  from  that  alleged  and  that  the  stat- 
ute is  not  relied  on58.  The  protection  of  the  statute 
is  waived  where  it  might  have  been  set  up  in  a  previ- 
ous suit  between  the  same  parties  but  was  not59. 
But  it  cannot  be  waived  by  any  act  of  an  adminis- 
trator or  executor  to  the  detriment  of  the  heirs  or 
devisees60. 

3.  EFFECT  OF  WAIVING  THE  STAT- 
UTE :-^Sec.  181.  The  failure  to  claim  the  benefit 
of  the  statute  of  frauds  is  permanent,  and  an  op- 
portunity to  claim  its  protection  once  gone,  returns 
no  more.  So,  a  party  having  failed  to  claim  its  'bene- 
fit in  an  original  suit,  cannot  set  up  the  statute  on  a 
cross-bill61.  It  is  too  late  to  raise  the  question  of 
the  statute  of  frauds  for  the  first  time  in  a  motion 
for  a  new  trial,  or  on  error  or  appeal.  Unless 
raised  at  the  time  of  trial,  it  is  waived62.  When 


66.  Mooney  v.  Elder,  56  N.  T.  238. 

67.  Talbot  v.  Bowen,  1  A.  K.  Marshall  436 ;    10  A.  D.  747. 
Esway  v.  Gorton,  18  111.  483. 

58.     Baker  v.  Hollobaugh,   15   Ark.   322. 

69.     Foulke  v.  Thallmessinger,  1  App.  Div.  598 ;    73  N.  Y.  St.  R.  194. 

60.  Matter  of  O'Rourke,  12  Misc.  248;    68  N.  T.  St.  R.  1. 

61.  Battell  v.  Matot,  58  Vt.  271 ;    5  Atl.  479. 
•2.     Hogan  v.  Easterday,  58  Til.  App.  46. 

Finucan  v.  Kendlg,  109  HI.  198. 

Gordon  v.  Reynolds?,  114  111.  118 ;    28  N.  B.  456. 


182  THE  LAW  OF  WAIVER 

parol  evidence  of  a  contract  within  the  statute  of 
frauds  is  introduced  without  objection,  it  cannot 
afterwards  be  objected  to  on  appeal63,  and  the  same 
is  true  where  the  statute  is  waived  in  any  manner  in 
the  trial  court  whether  by  failure  to  plead  or  other- 
wise64. So,  where  a  defendant  waived  the  protec- 
tion of  the  statute  at  the  trial,  it  was  not  permitted 
him  to  assert  it  at  a  second  trial  when  the  case  had 
been  remanded  by  the  Supreme  Court65. 

So  strict  are  the  rules  of  practice  requiring  a  de- 
fendant to  take  proper  steps  to  avail  himself  of  the 
benefit  of  the  statute  or  holding  him  to  a  waiver  of 
it,  that  it  is  said  that  it  matters  not  how  obnoxious 
to  the  statute  a  contract  may  be,  it  will  be  enforced 
if  the  statute  has  been  waived66. 


63.  Marr  v.  Ry.  Co.,  121  la.  117;    96  N.  W.  71«. 

64.  Boston  v.  Nichols,  47  111.  353. 

Neagle  v.  Kelly,  146  111.  460  ;    34  N.  E.  947. 
Neuvirth  v.  Angler,  83  Mo.  App.  420. 
Hawley  v.  Dawson,  16  Oreg.  347 ;    18  Pac.  592. 
Prior  v.  Sanborn  Co.,  12  S.  Dak.  86 ;    80  N.  W.  169. 
Holt  v.  Brown  Co.,  63  la.  319  ;    19  N.  W.  239. 

65.  Barrett  v.  McAllister,  35  W.  Va.  103;    12  S.  B.  110«. 

66.  Espalla  v.  Wilson,  86  Ala.  487 ;    5  So.  867. 
Talbot  v.  Bowen,  1  A.  K.  Marshall  436   (Ky.). 
Newton  v.  Swazey,  8  N.  H.  13. 

Woods  v.  Dllle,  11  Oh.  St.  455. 
Albert  v.  Wlnn,  5  Md.  66. 
Email  v.  Owlngs,  1  Md.  Ch.  36a. 


EXEMPTIONS  183 

CHAPTER  7. 

EXEMPTIONS. 

Section 

1.  WAIVER  IN  GENERAL T 182 

2.  BY  CONCURRENT  AGREEMENT 18  J 

3.  BY  SUBSEQUENT  CON/DUCT 185 

4.  HOMESTEAD  EXEMPTIONS 187 

1.  WAIVER  IN  GENEEAL:— Sec.  182.  Cer- 
tain considerations  have  made  it  questionable  wheth- 
er the  right  to  exemptions  can  be  waived.  The  stat- 
utes providing  for  exemptions,  while  giving  them  to 
the  head  of  a  family,  really  contemplate  the  creation 
of  a  trust  in  which  he  is  to  hold  the  property  so  pro- 
tected for  the  support  of  his  family,  for  the  benefit 
of  those  depending  upon  him  more  than  for  his  own 
good.  And  there  are  instances  in  which  the  power 
to  waive  the  right  to  exemptions  is  denied  without 
the  concurrence  of  those  for  whose  real  protection 
the  exemption  exists67.  Generally,  however,  it  may 
be  said  that  the  right  to  exemptions  is  one  which  may 
be  waived68,  unless,  of  course,  the  state  constitution 
or  some  statute  prevent  this.  As  the  husband,  being 
the  head  of  the  family,  is  entitled  to  manage  the 
property,  he  also  has  the  right  to  waive  the  benefit 
of  exemption  laws  passed  for  the  protection  of  his 
family69 ;  in  fact  he  is  generally  the  only  one  who  has 
the  right  to  waive  exemptions,  although  in  Alabama 
the  constitution  denies  him  the  right  unless  he  is 
joined  in  such  waiver  by  his  wife  if  the  exemption 
relate  to  realty.  There  are  certain  principles  in  the 


C7.     Hen  v.  Beates,  7S  Pa.  St.  429. 

68.  Marchlldon  v.  O'Hara.  52  Mo.  App.  523. 

69.  BeU  v.  Brenner,  106  Mien.  87;    63  N.  W.  970. 


THE  LAW  OF  WAIVES 


adjudications  that  would  seem  to  be  at  variance  with 
the  a'bove  outlines,  and  a  distinction  exists  'between 
cases  where  a  waiver  is  attempted  'by  concurrent 
agreement  and  those  where  a  waiver  is  sought  to  be 
induced  from  conduct  subsequent  to  the  agreement. 

2.  BY  CONCURRENT  AGREEMENT  :—  Sec. 
183.  The  general  rule  is  that  one  entitled  to  stat- 
utory exemptions  cannot  waive  the  benefit  of  exemp- 
tion laws  by  an  agreement  contemporaneous  with 
the  creation  of  his  debt70.  This  is  based  upon  con- 
siderations of  public  policy  and  is  an  attempt  by  law 
to  protect  a  debtor,  and  more  especially  those  de- 
pending upon  him,  against  the  exigencies  of  unto- 
ward circumstances  and  the  results  of  his  own  im- 
providence. Our  common  experience  demonstrates 
that  men  are  usually  sanguine  in  creating  a  debt, 
and  most  debtors  are  provident  to  have  planned  out 
in  advance  the  channels  of  revenue  from  which  funds 
are  to  be  drawn  to  meet  the  debt  at  its  maturity;  a 
few  disregard  the  approach  of  pay-day  and  think 
only  of  the  immediate  benefits  to  'be  derived  as  a  re- 
sult of  the  debt.  But  the  judgments  of  men  are  fall- 
ible, plans  many  times  remain  unexecuted,  and  un- 
toward events  frequently  bring  misfortune  to  the 
door  of  the  provident  as  well  as  the  shiftless,  and 
however  willing  one  may  be,  either  through  inten- 
tion or  through  carelessness,  to  relinquish  his  rights 
to  his  creditor  in  order  to  assure  him  of  an  intention 


70.     Mills  v.  Bennett,  94  Tenn.  652  ;    30  S.  W.  748  ;    45  A.  S.  R.  763. 
Phelps  v.  Phelps,  72  111.  545 ;    22  A.  R.  149. 
Carter  v.  Carter,  20  Fla.  558;    51  A.  R.  618. 
Moran  v.  Clark,  30  W.  Va.  358;    4  S.  E.  303;    8  A.  S.  R.  66. 
Kneettle  v.  Newcomb,  22  N.  T.  249 ;    78  A.  D.  186. 
Burke  v.  Flnley,  50  Kans.  424;    31  Pac.  1065;    34  A.  S.  R.  132. 
Walllngsford  v.  Bennett,  1  Mackey  303. 


EXEMPTIONS  185 

to  pay,  the  law  often  must  protect  him  from  the 
rapaciousness  of  a  too-greedy  or  too-exacting  credi- 
tor. It  is  for  such  reasons  that  courts  hold  prospec- 
tive agreements  to  waive  the  'benefit  of  exemption 
laws  against  public  policy  and,  therefore,  void. 

Sec.  184.  These  principles,  however,  should 
not  obtain  unless  the  debtor  be  the  head  of  a  family 
or  have  some  one  depending  upon  his  latbors  for  sup- 
port. A  single  man,  capable  of  contracting,  should 
have  the  privilege  of  foregoing  the  benefit  of  ex- 
emption laws  if  he  so  desires,  since  his  act  can  effect 
no  one  but  himself71,  although  such  power  has  been 
denied  him72.  But  the  rule  should  not  be  extended 
farther  than  that.  The  law  intends  to  protect  the 
poor  and  needy,  the  innocent  and  helpless,  and  as 
has  been  noted  above  and  declared  by  a  Kentucky 
court,  "The  legislature  certainly  intended  by  the  en- 
actment of  such  laws  to  provide  more  for  the  de- 
pendent family  of  the  debtor  than  for  the  debtor 
himself"73.  And  in  speaking  of  such  prospective 
waivers,  a  North  Carolina  court  said,  "There  is  no 
description  of  property,  no  agreement  to  sell  or 
make  title  to  anything,  so  that  specific  performance 
is  out  of  the  question.  The  agreement  is  to  waive  a 
right  in  contravention  of  state  policy,  which  agree- 
ment this  court  cannot  undertake  to  enforce"74. 
The  provision  of  a  note  is  void  which  expressly 
waives  "the  benefit  of  all  laws  exempting  real  or 
personal  property  from  levy  and  sale"75.  A  waiver 


71.  Powell  v.  Dalley,  163  111.  646 ;    46  N.  E.  414. 

72.  Mills  v.  Bennett,  94  Tenn.  652;    30  S.  W.  748;    45  A.  S.  R.  763. 

73.  Moxley  v.   Ragan,   10   Bush  158. 

74.  Branch  v.  Tomlinson,  77  N.  Car.  388. 

75.  Recht  v.  Kelly,  82  111.  147;    25  A.  R.  301. 


186  THE  LAW  OF  WAIVEB 

of  exemptions  contained  in  a  confession  of  judgment 
is  also  void76.  But  an  agreement,  concurrent  with 
the  creation  of  a  debt,  to  pay  the  debt  out  of  the  pro- 
ceeds of  life  insurance  which  is  made  exempt  by  stat- 
ute, has  been  held  a  waiver  of  the  right  to  such  ex- 
emptions77. 

An  opposing  doctrine  to  the  above  has  been  held. 
In  Pennsylvania  it  has  been  held  that  such  agree- 
ments may  be  enforced  and  that  the  waiver  is  valid78. 
But  this  is  not  in  accord  with  the  trend  of  judicial 
thinking  nor  the  weight  of  authority. 

3.  BY  SUBSEQUENT  CONDUCT :— Sec  185. 
While  the  law  throws  about  a  debtor  as  complete  a 
blanket  of  protection  of  his  exempt  property  as  is 
consistent  with  its  duties  and  obligations  to  others, 
he  cannot  always  be  shielded  from  the  results  of  his 
own  inconsistent  conduct.  He  may  so  conduct  him- 
self after  the  maturity  of  his  debt  as  to  persuade 
his  creditor  that  a  right  to  claim  exemptions  will 
not  be  taken  advantage  of.  Thus,  if  personal  prop- 
erty by  law  made  exempt  from  execution  is  not 
claimed  within  a  reasonable  time  after  it  has  been 
seized,  the  right  to  hold  it  as  exempt  is  waived79. 
And  a  pledge  of  personal  property  is  an  implied 
waiver  of  a  right  to  claim  it  as  exempt80.  So,  a  fail- 


Maxwell  v.  Reed,  7  Wis.  583. 
Fejavary  v.  Broesch,  62  la.  89 ;    2  N.  W.  968. 
Crawford  v.  Lockwood,  9  How.  Pr.  547. 
Troutman  v.  Gowing,  16  la.  415. 

76.  Rutt  v.  Howell,   50  la.  537. 

77.  Murdy  v.  Skyles,  101  la.  549 ;    70  N.  W.  714 ;    68  A.  S.  R.  411. 

78.  Shelley's  Appeal,  36  Pa.  St.  373. 
Case  17.  Dunmore,  23  Pa.  St.  93. 
Johnston's  Appeal,  25  Pa.  St.  116. 

T9.     Stanton  v.  French,  83  Cal.  194 ;    23  Pac.  355. 
80.     Hawley  v.  Hampton,  160  Pa.  St.  18 ;    28  All.  477. 


EXEMPTIONS  187 

lire  to  file  a  schedule  of  exemptions  as  provided  by 
statute  is  a  waiver  of  the  exemption81.  The  abandon- 
ment of  a  business  is  a  waiver  of  a  statutory  right 
to  exemptions  to  one  who  conducts  a  business82. 
Where  a  levy  is  made  on  exempt  property  and  a 
claim  for  exemptions  is  not  made  before  sale,  the 
exemption  is  lost  whether  or  not  the  debtor  knew  of 
the  sale83.  An  execution  debtor  voluntarily  surrend- 
ering property  levied  upon,  without  claiming  his 
right  to  exemptions,  waives  the  right  to  such  claim84. 
And  it  is  also  a  waiver  to  convey  the  exempt  prop- 
erty to  another,  especially  with  fraudulent  intent85, 
although  the  opposite  of  this  is  maintained86.  So 
the  intermingling  of  the  proceeds  of  the  sale  of 
property  some  of  which  is  exempt  and  some  not,  is 
a  waiver  of  the  right  to  claim  an  exemption87.  And 
it  is  a  waiver  to  fail  to  appear  at  the  time  and  place 
fixed  for  setting  apart  property  claimed  to  be  ex- 
empt88. And  on  removing  property  to  an  auction 
room  to  be  sold,  a  party  waives  the  right  to  claim 
such  property  as  exempt89.  Whenever  a  statute 
prescribes  a  mode  to  be  followed  in  asserting  a  claim 
to  exemptions,  this  mode  must  be  pursued  or  the 


81.  Chambers  v.  Perry,  47  Ark.  400 ;    1  S.  W.  700. 

82.  Betz  v.  Brenner,  106  Mich.   87;    63  N.  W.  970. 

83.  Bell  v.  Davis,  42  Ala.  46. 

84.  Richards  v.  Haines,  30  la.  574. 

86.     Wyman  v.  Gay,  60  A.  S.  R.  238   (Me.). 
Mandlove  v.  Burton,  1  Ind.  39. 
Bonn  v.  Weeks,  50  111.  App.  236. 

86.  King  v.  Harter,  70  Tex.  579 ;    8  S.  W.  SOS. 
Narnburg  v.  Hyatt,   24  Fed.   898. 

Duvall  v.  Rollins,  71  N.  Car.  218. 

87.  Rasco  v.  Sheet,   8  Ky.  L.  R.   703. 

88.  Butt  v.  Green,  29  Oh.  St.  667. 

89.  Kennedy  v.   Baker,    4   Chand.   19    (Wis.). 


188  THE  LAW  OF  WAIVES 

right  will  be  deemed  waived90.  A  claim  to  exemp- 
tions may  be  lost  by  laches,  as  where  a  debtor  de- 
layed four  months  after  levy  before  making  a 
claim91.  And  entering  into  an  agreement  for  the 
sale  of  exempt  property  taken  under  an  attachment 
is  a  waiver  of  the  exemption92.  So  if  the  debtor,  at 
the  time  of  the  levy  on  his  property,  disclaims  own- 
ing it,  his  right  to  claim  it  as  exempt  is  lost93,  al- 
though this  has  been  denied94.  Where  partners  de- 
liver property  into  the  hands  of  contractors  who  are 
to  do  work  upon  it,  they  thereby  waive  their  right 
to  claim  their  individual  exemptions95. 

Sec.  186.  But  as  exemption  laws  are  always  to 
be  construed  as  favorably  as  possible  to  the  debtor, 
it  is  not  every  act  of  his  in  dealing  with  exempt 
property  that  will  warrant  courts  in  holding  him  to 
have  waived  his  right  to  claim  his  exemptions.  Thus, 
failure  to  assert  a  claim  until  an  attempt  to  sell  the 
property  is  not  a  waiver  of  the  right  to  the  claim96. 
Nor  is  it  necessary  to  make  the  claim  before  the  levy 
of  the  process97.  And  after  the  levy  the  giving  of  a 
re-delivery  or  forth-coming  bond  will  not  take  away 
the  right  to  claim  the  property  as  exempt98.  This 

90.     State  v.  Boulden,  57  Md.  314. 

Wagner  v.  Harden,  13  Ind.  App.  571;    41  N.  E.  1067. 

Stanton  v.  French,  83  Cal.  194  ;    23  Pac.  355. 

Hammersmith  r.  Avery,  18  Nev.  225  ;    2  Pac.  55. 

Behymer  v.   Ccok,   5   Colo.   395. 

Buzzell  v.  Handy,  58  N.  H.  331. 
81.     Borland   v.    O'Neal,    22    Cal.    504. 

92.  Dow  v.  Cheney,  103  Mass.  181. 

93.  Gilleland  v.  Rhoads,  34  Pa.  St.   187. 
Miles  v.  State,   73  Md.   398;    21   Atl.   51. 

94.  State  v.  Carson,  27  Neb.  501 ;    43  N.  W.  361 ;    20  A.  S.  R.  681. 

95.  Rogers  v.  Raynor,  102  Mich.  473;    60  N.  W.  980. 
»6.     McMichael  v.  Grady,  34  Fla.  219  ;    15  So.  765. 

97.  Alley  v.  Daniel,  75  Ala.  403. 

98.  Atkinson  v.  Gatcher,  23  Ark.  101. 
Desmond  v.  State,  IB  Neb.  438;    19  N.  W.  644. 


EXEMPTIONS 

is  true  because,  for  one  reason,  it  is  the  rule  that 
the  claim  may  be  made  at  any  time  before  the  sale" ; 
and  it  has  been  held  that  the  right  does  not  cease 
even  at  the  time  of  sale.  A  debtor  who  retains  prop- 
erty as  bailee  for  the  sheriff  who  has  levied  upon  it, 
or  who  directly  or  indirectly  buys  it  at  execution 
sale,  does  not,  in  either  case,  waive  the  right  to  claim 
the  same  property  as  exempt100.  And  though  a 
party  entitled  to  exemptions  is  present  at  the  time 
of  sale  of  exempt  property  and  receives  the  surplus 
from  the  sheriff,  he  does  not  thereby  waive  his  right 
to  exemptions1.  So  where  a  debtor  fails  to  elect  as 
to  what  property  he  will  claim,  he  does  not  thereby 
lose  his  right  to  exemptions2.  And  the  giving  up  of 
property  to  the  sheriff  is  not  a  waiver3,  although  it 
has  been  held  otherwise  if  the  debtor  directs  the  levy 
to  be  made  on  specific  property4.  To  first  traverse 
an  attachment  on  other  grounds  than  for  exemptions 
is  no  waiver  of  a  claim  of  the  same5.  And  where 
partners  traverse  an  attachment  of  partnership 
goods  it  is  not  a  waiver  of  their  individual  ex- 
emptions in  such  goods6.  Merely  receipting  an  of- 
ficer for  goods  levied  upon  does  not  preclude  the 
right  to  claim  them  as  exempt7.  And  an  agreement 
to  turn  over  exempt  property  to  a  creditor  in  pay- 
ment of  a  debt  was  held  no  waiver  of  the  right8. 


99.  Daniels  v.  Hamilton,  52  Ala.  105. 

100.  Parham  v.  McMurray,  32  Ark.  261. 

1.  Phillips  v.  Taber,  83  Ga.  565. 

2.  Colson  v.  Wilson,  88  Me.  416. 

8.  Eltzroth  v.  Webster,  15  Ind.  21 ;    77  A.  D.  78. 

4.  People  v.  Johnson,  4  111.  App.  346. 

6.  Bassett  v.  Inman,  7  Colo.  270;    3  Pac.  383. 

6.  Ladewif?  v.  Williams.  87  Wis.  615:    58  N.  W.  1103. 

7.  Vanderhorst  v.  Bacon,  38  Mich.  669;    31  A.  R.  328. 

5.  Washburn  v.  OoodheacLt  88  ill.  229. 


190  THE  LAW  OF  WAIVER 

4.  HOMESTEAD  EXEMPTIONS :— Sec.  187. 
An  owner  does  not  waive  his  homestead  exemption 
by  failing  to  take  any  step  or  to  assert  his  right ;  he 
need  not  make  any  claim9,  or  demand10  for  it.  This 
must,  of  course,  'be  dependent  upon  whether  a  stat- 
ute affects  the  subject  of  not;  thus,  under  the  Mis- 
souri statute  it  was  held  to  be  immaterial  whether 
the  homesteader  made  any  claim11.  And  the  right  is 
not  lost  by  neglecting  to  have  the  homestead  set  over 
to  the  debtor  by  the  officer  levying  the  execution12. 
But  there  are  instances  to  the  contrary.  Thus,  in 
Nebraska  it  is  said  that  the  homestead  right  is  a 
purely  personal  one  which  the  owner  may  at  any 
time  waive  or  renounce;  and  it  may  be  lost  if  the 
owner  does  not,  at  the  time  a  levy  is  made  upon  it, 
notify  the  officer  of  what  he  regards  as  his  home- 
stead13. 

Sec.  188.  But  the  considerations  that  obtain  as 
to  exemptions  of  personal  property  are  more  forci- 
ble in  the  case  of  a  homestead.  While  running  di- 
rectly in  favor  of  the  head  of  a  family,  the  reserva- 
tion the  law  makes  of  a  homestead  is  for  the  'benefit 
of  those  dependent  upon  him.  It  is  meant  that  they 
ehall  have  a  haven  into  which  the  tempests  of  ad- 
versity or  improvidence  or  ill-advised  speculation 
may  not  penetrate,  that  they  shall  have  a  safeguard 
against  the  power  of  the  husband  or  father  to  de- 


*.     Wiggins  v.  Chance,  54  111.  175. 

Imhoff  v.  Lipe,  162  111.  282;    44  N.  E.  493. 
19.     Gray  v.  Putnam,  51  S.  Car.  97;    28  S.  E.  14f. 

11.  Vogler  v.  Montgomery,  54  Mo.  584. 

12.  Barney  v.  Leeds,  51  N.  H.  253. 

See:    Wright  v.  Grabf elder,  74  Ala.  4C«. 
Llvermore  v.  Boutelle.  11  Gray  217. 
It.     Rector  v.  Rotton,  S  Neb.  171. 


EXEMPTIONS  191 

prive  them  of  this  shelter,  this  protection  from  be- 
ing forced  from  under  their  roof  by  a  too-grasping 
creditor  who  might  be  given  such  authority  through 
the  over-eagerness  of  the  debtor  to  create  the  obli- 
gation. And  if  the  head  of  the  family  have  the  pow- 
er to  waive  or  renounce  such  right  of  exemptions,  the 
protection  sought  to  be  thrown  around  helpless  ones 
is  most  incomplete.  In  some  states,  however,  where 
the  right  may  be  waived,  the  wife  may  assert  it  if 
the  husband  fail  to  do  so14. 

Sec.  189.  Most  states  provide  by  statute  a 
means  of  disposing  of  the  homestead  and  renouncing 
the  benefit  of  it  as  an  exemption;  and  these  provi- 
sions must  be  followed  to  the  letter  or  creditors  ob- 
tain no  rights  therein.  For,  as  has  been  repeatedly 
said  here  and  elsewhere,  the  homestead  right  is  for 
the  benefit  of  the  wife  and  children,  a  right  "of 
which  she  and  they  cannot  be  deprived  in  any  other 
way  than  that  prescribed  in  the  act  itself.  A  pro- 
ceeding by  ejectment  to  be  followed  by  a  writ  of  pos- 
session accomplishes  what  the  act  designs  shall  not 
be  accomplished  by  a  levy  and  forced  sale;  and  the 
injury  to  her  is  equally  as  great,  and  the  object  of 
the  act  completely  defeated.  The  separate  property 
of  the  wife  which  she  may  own  in  fee  cannot  be  taken 
away  from  her  without  her  free  consent  to  be  mani- 
fested as  the  statute  directs ;  nor  can  she  be  deprived 
of  dower  in  her  husband's  estate  except  by  her  own 
consent.  No  judgment  or  decree  of  court,  no  deed  to 
which  she  "is  not  a  willing  party  can  deprive  her  of 
this  right;  and  this  right  of  homestead  is  equally 
inviolate  in  spite  of  creditors  or  husband.  Nor  does 

14.     Goldman  v.  Clark,  1  Nev.  (07. 


192  THE  LAW  OF  WAIVER 

the  law  require  her  or  her  husband  to  do  any  act  to 
secure  this  right.  They  are  both  passive  while  the 
law  silently,  but  effectively  throws  around  them  its 
protecting  shield"15.  Many  other  courts  sustain 
these  arguments  and  principles16. 


16.     Pardee  v.  Llndley,  31  111.  174 ;    83  A.  D.  219. 

Citing:    Patterson  v.  Kreig,  29  111.  518. 
16.     Cummings  v.  Long,  16  la.  41;    85  A.  D.  502. 

Ring  v.  Burt,  17  Mich.  465. 

Abbott  v.  Cromartie,  72  N.  Car.  292  ;    21  A.  R.  46 T. 

Ferguson  v.  Kumber,  25  Minn.  183. 

Wing  v.   Hayden,    10   Bush  '276. 

Morris  v.  Ward,  5  Kans.  239. 

Myers  v.  Ford,  22  Wis.  139. 

McCracken  v.  Adler,  98  N.  Car.  400;    4  S.  E.  188;    2  A.  S.  B.  140. 

Watts  v.  Gallagher,   97  Cal.  47;   31  Pac.  62«. 

Rodgers  v.  Baker,  96  Ga.  800 ;    22  S.  E.  585. 

Katliff  v.  Graves,  132  Mo.  76 ;    38  S.  W.  4EO. 


PEIVILEGED  COMMUNICATIONS 


CHAPTER  8. 

PRIVILEGED  OOMMUNICATEONB. 

Sectkm 

1.  IN  GCEINiERAIj 190 

2.  ATTORNEY  AND   CLJtENT 191 

ft.     PHYSICIAN   AND    PATIENT — 

A.  Who  May  Waive  Privilege .  196 

B.  What  Amounts  to  Waiver 197 

4.     HUSBAND  AND  WIFE 198 

1.  IN  GENERAL :— Sec.  190.     The  law  has 
placed  a  blanket  of  exclusion  about  certain  classes 
of  evidence  which  public  policy  does  not  permit  to 
be  removed  without  the  consent  of  him  who  is  en- 
titled to  its  protection.     This  apparent  contraven- 
tion of  other  rules  of  evidence  that  require  all  the 
facts  pertaining  to  a  case  to  be  disclosed  is  founded 
on  the  proposition  that  more  harm  and  less  justice 
would  result  from  a  disclosure  of  what  is  termed 
a  privileged  communication  than  from  withholding 
it.    It  is  not  proposed  here  to  enter  into  a  discussion 
of  what  is  a  privileged  communication,  but  to  show 
that  the  right  to  have  the  seal  of  the  law  remain  on 
such  matters  is  a  personal  right  which  may  be 
waived  'by  him  who  is  entitled  to  assert  it,  and  to 
ascertain  what  will  be  sufficient  to  constitute  such 
.waiver. 

2.  ATTOENEY  AND  CLIENT:— Sec  191.  By 
tlie  common  law,  all  matters  communicated  to  and 
received  by  an  attorney,  counsellor  or  solicitor  in  his 
professional  capacity  are  privileged  and  may  not  be 


194  THE  LAW  OF  WAIVER 

disclosed  by  him  without  the  consent  of  his  client17. 
This  has  been  embodied  in  statutory  provisions  in 
most  states.  But  the  privilege  of  secrecy  as  to  such 
matters  is  that  belonging  to  the  client  and  he  may 
waive  it  if  he  choose18,  although  the  attorney  cannot. 
The  privilege  once  being  waived  by  the  client,  how- 
ever, the  attorney  is  thereby  made  a  competent  wit- 
ness and  may  be  compelled  to  testify19.  A  waiver 
may  also  be  made  by  personal  representative,  ex- 
ecutor or  administrator  of  the  client20,  but  not  by 
his  assignee21,  nor  his  successor  in  a  representative 
capacity22;  but  if  two  or  more  are  entitled  to  the 
same  privilege,  the  consent  of  each  is  necessary  be- 
fore the  matter  can  be  testified  to23,  and  one  partner 
cannot  waive  the  privilege  for  the  firm24.  At  all 
events,  the  waiver  must  distinctly  appear  either  by 


17.  Higbee  v.  Dresser,   103  Mass.  523. 

MoClellan  v.  Longfellow,  32  Me.  494;    54  A.  D.  599. 

Andrews  v.  Slmms,  33  Ark.  771. 

Maxham  v.  Place,  46  Vt.  434. 

Root  v.  Wright,  84  N.  Y.  72;    38  A.  R.  495. 

Gallagher  v.  Williamson,  23  Cal.  331;    83  A.  D.  114. 

18.  Passmore  v.  Passmore's  Est.,  50  Mich.  626;    16  N.  W.  170. 

45  A.     S.R. 

Hunt  v.  Blackburn,  128  U.  S.  464. 
Sleeper  v.  Abbott,  60  N.  H.  162. 
Rowland  v.  Plummer,  50  Ala.  182. 
Tays  v.  Carr,  37  Kans.  141 ;    14  Pac.  456. 

19.  Benjamin  v.  Coventry,  19  Wend.  353. 
Chase's  Case,  1  Bland  206 ;    17  A.  D.  277. 

20.  Brooks  v.  Holden,  175  Mass.  137;    55  N.  E.  802. 
Ex  parte,  Gfeller,  178  Mo.  248  ;    77  S.  W.  552. 

21.  Bowman  v.  Norton,  5  Car.  &  P.  177 ;    24  E.  C.  L.  2«5. 

22.  Herman  v.  Schlesinger,   114  WJs.  382;    90  N.  W.   460;    91  A.  S. 

R.  922. 

23.  Michael  v.  Foil,  100  N.  Car.  178;    6  S.  E.  264;    6  A.  S.  R.  577. 
Herman  v.  Schlesinger,  114  Wis.  382;    90  N.  W.  460;    91  A.  S.  R. 

922. 

Bank  of  Utica  v.  Merserean,  3  Barb.  Ch.  528;    49  A.  D.  189. 
Seip's  Est.,  163  Pa.  St.  423;    30  Atl.  226;    43  A.  S.  R.  803. 

24.  People  v.  Barker,  56  111.  299. 


PRIVILEGED  COMMUNICATIONS  195 

express  provision  or  expression  of  the  client,  or  by 
necessary  implication  from  his  conduct25,  and  a 
court  has  no  power  to  supply  a  waiver  of  the  privi- 
lege of  one  who  died  without  making  it26. 

Sec.  192.  Many  different  acts  and  words  have 
been  held  to  constitute  a  waiver  of  this  privilege,  and 
the  circumstances  under  which  it  is  waived  are  var- 
ious. The  waiver  may  'be  by  express  words  of  the 
client  or  it  may  be  implied  from  his  conduct.  An 
express  waiver  is  made  where  the  party  states  in 
person  or  by  his  attorney  that  he  does  not  claim  the 
privilege27,  although  if  made  by  the  attorney,  the 
client  must  consent  thereto.  There  can,  of  course, 
be  no  controversy  about  this.  But  more  difficulty 
has  arisen  in  determining  what  constitutes  an  im- 
plied waiver.  It  is  said  that  the  bar  is  lifted  when 
the  client  requests  the  attorney  to  subscribe  as  a 
witness  to  an  instrument  which  he  has  caused  the 
attorney  to  prepare,  such  as  a  will28,  mortgage29  or 
agreement30,  and  that  the  attorney  may  be  compelled 
to  testify  as  to  facts  concerning  the  execution  of  the 
instrument,  it  being  said,  however,  that  the  testi- 


25.  State  v.  James,   34   S.  Car.   58;     12   S.  E.   657. 
Tate  v.  Tate's  Ex'rs.,  75  Va.  533. 

26.  Morris  v.   Caine's  Ex.,   39  La.  Ann.   726  ;     2   So.   418. 
Clay  v.  Williams,  2  Munf.  105;    5  A.  D.  453. 

27.  Brltton  v.  Lorenz,  3  Daly  23  (N.  T.). 

28.  In  re  Coleman,  111  N  Y.  220;   19  N.  E.   71. 
Blackburn   v.   Crawford's   Lessee,    3   Wall.    175    (TT.   S.). 
McMaster  v.  Scriven,  85  Wis.  162  ;    55  N.  W.  149  ;    39  A.  S.  R.  828. 
Doherty  v.  O'Callaghan,   157  Mass.   90;     31   N.  E.   726;    34  A.  S. 

R.  258;    17  L.  R.  A.  188. 

Denning  v.  Butcher,  91  la.  434  ;    59  N.  W.  69. 
Pence  v.  Waugh,  135  Ind.  143  ;    34  N.  E.  860. 

29.  Monaghan   Co.   v.   Dickson,    39    S.   Car.    146;     17   N.   E.    696;     39 

A.  S.  R.  704. 

30.  Herman  v.  Schlesinger,  114  Wis.   382;    90   N.  W.  460;     91   A.  S. 

R.  922. 


196  THE  LAW  OF  WAIVEB 

mony  must  be  limited  to  matters  concerning  the  ex- 
ecution of  the  instrument  and  not  relate  to  those 
occurring  during  the  course  of  its  preparation.  But 
this  latter  is  not  the  universal  holding.  For  in- 
stance, it  is  announced  that  even  where  a  testator 
requests  that  matters  communicated  to  his  attorney 
during  the  preparation  of  the  former's  will  be  held 
confidential,  this  privilege  is  waived  by  his  request- 
ing the  attorney  to  subscribe  the  will  as  a  witness31 ; 
and  it  is  said  further  that  a  client  signing  his  will  in 
the  presence  of  witnesses  waives  the  privilege  as  to 
his  attorney's  testimony  concerning  the  execution 
and  contents  of  the  will32.  The  better  rule  undoubt- 
edly is  that  a  party  calling  his  attorney  as  a  sub- 
scribing witness  to  his  will  or  other  instrument  pre- 
pared by  the  attorney  at  the  client's  request,  waives 
no  right  to  insist  on  his  privilege  as  to  communica- 
tions made  during  the  preparation  of  the  instrument, 
and  in  the  presence  of  objection  from  the  client,  the 
attorney  can  testify  to  only  such  matters  as  any 
other  subscribing  witness  might  testify  to38. 

Sec.  193.  The  nature  of  the  communication 
may  create  an  implied  waiver  of  the  privilege34. 
Thus,  where  a  deceased  client  had  delivered  to  her 
attorney  a  deed  to  be  by  him  delivered  to  the  grantee, 
all  objections  to  proof  of  such  facts  by  the  attorney 


31.  In  re  Lumib's  Will,  18  N.  T.  Supp.  173. 

32.  Fayerweather  v.  Ritch,  90  Fed.  13. 

83.     Herman  v.  Schlesinger,   114  Wis.  382;    90  N.  W.  460;    91  A.  8. 

R.  922. 
McMaster  v.  Scriven,  86  Wis.  168;    65  N.  W.  149;    38  A.  8.  R. 

828. 

In  re  Coleman's  Will,  111  N.  T.  226;   19  N.  B.  71. 
14.     Scott  v.  Harris,  113  111.  455. 

White  v.  State,  86  Ala.  69 ;    5  So.  674. 
Burnside  v.  Terry,  51  Ga.  186. 


PEIVILEGED  COMMUNICATIONS  197 

were  waived35.  And  a  client  directing  his  attorney 
to  communicate  the  contents  of  a  letter  to  another 
lawyer,  waives  his  privilege  as  to  the  contents  of 
the  letter36.  The  same  is  true  where  the  communi- 
cation is  oral37.  A  client  empowering  his  attorney 
to  enter  into  negotiations  with  his  adversary  or  into 
an  agreement  with  another  party,  waives  the  right  to 
prevent  his  attorney  from  testifying  as  to  such  mat- 
ters and  as  to  his  authority  therein38.  By  employ- 
ing one  attorney,  two  or  more  clients  waive  their 
privilege  in  an  action  between  themselves39. 

Sec.  194.  By  making  disclosure  of  the  com- 
munication40, pleading  it  or  offering  testimony  sup- 
porting such  pleading41,  failing  to  object  to  questions 
designed  to  bring  out  such  communication42,  omit- 
ting to  move  to  strike  out  such  testimony43,  or  testi- 
fying thereto  himself44,  constitute  an  implied  waiver 


36.     Rosseau  v.  Blean,  131  N.  Y.  177;    30  N.  E.  52;    27  A.  S.  R.  578. 

36.  Loflin  v.  Herrington,  1  Black  326   (U.  S.). 

37.  White  v.  State,  86  Ala.  69  ;    5  So.  674. 

38.  Bartlett  v.  Bunn,  10  N.  Y.  Supp.  210 ;    56  Hun  507. 
Nave  v.  Baird,  12  Ind.  318. 

Mitchell  v.  Bromberger,  2  Nev.  345 ;    90  A.  D.  550. 

Waldo  v.  Beckwith,  1  N.  Mex.  182. 

Hager  v.  Shindler,  29  Cal.  63. 

Henderson  v.  Terry,  62  Tex.  281. 

Snow  v.  Gould,  74  Me.  540;    43  A.  R.  605. 

Weeks,  Attorneys,  Sees.  151-2. 

39.  Parish  v.  Gates,  29  Ala.  254. 

40.  In  re  Burnette.  85  Pac.  575. 

41.  Cole  v.  Andrews,  74  Minn.  93  ;    76  N.  W.  962. 

42.  Chase's  Case,  1  Bland  Ch.  206;    17  A.  D.  277. 

Shelton  v.  N.  Tex.  Co.,  32  Tex.  Civ.  App.  507  ;    75  S.  W.  333. 
Sleeper  v.  Abbott,  60  N.  H.  162. 

43.  Kitz  v.  Buckmaster,  45  App.  Div.  283  ;    61  N.  Y.  Supp.   64. 

44.  Brand  v.  Brand,  39  How.  Pr.  193  and  282. 
People  v.  Patrick,  182  N.  Y.  131;    74  N.  B.  843. 
Knight  v.  People,  192  111.  170 ;    61  N.  E.  371. 

Shelton  v.  N.  Tex.  Co.,  32  Tex.  Civ.  App.  507;    75  S.  W.  338. 

Hunt  v.  Blackburn,  128  U.  S.  464. 

Oliver  v.  Pate,  43  Ind.  132. 

Becker  v.  Shaw,  120  Ga.  1003 ;    48  S.  E.  408. 


198  THE  LAW  or  WAIVER 

by  the  client  of  his  privilege.  And  the  same  is  true 
if  the  client  testifies  on  cross-examination  without 
objection45,  interrogates  the  attorney  concerning  the 
communication46,  or  asks  him  if  certain  matters  were 
riot  privileged47 ;  but  the  attorney  cannot  disclose  the 
matter  on  cross-examination  unless  asked  about  it 
on  direct  48. 

8ec.  195.  There  is  some  difference  among  the 
courts  as  to  whether  a  client  waives  his  privilege  by 
becoming  a  witness  in  his  own  behalf.  On  the  one 
hand,  it  is  said  that  such  constitutes  a  waiver  and 
that  both  client  and  attorney  may  then  be  compelled 
to  testify  fully49 ;  and,  on  the  other  hand,  it  is  main- 
tained that  such  is  not  a  waiver50.  But  the  best  rule 
is  that  merely  becoming  a  witness  is  no  waiver  un- 
less the  privileged  matter  be  referred  to  on  the  direct 
examination  of  the  client51,  and  that  referring  on 
cross-examination  to  an  interview  or  stating1  the 
general  nature  of  the  conversation  with  his  attorney 
is  not  a  waiver52.  Introducing  in  evidence  letters  or 
portions  of  correspondence  from  his  attorney  is  a 
waiver  of  their  privileged  character53. 


45.  Oliver  v.  Cameron,  McArthur  &  M.  237   (D.  C.). 

46.  Brooks  v.  Holden,  175  Mass.  137  ;    55  N.  E.  802. 
Jones  v.  N.  M.  &  T.  Co.,  137  N.  Car.  237 ;    49  S.  E.  94. 
Smith  v.  Wilson,  1  Tex.  Civ.  App.  14.0  ;    20  S.  W.  1119. 
Crittenden  v.  Strother,  2  Cranch  C.  C.  464. 

47.  Scales  v.  Henderson,  44  S.  Car.  548  ;    22  S.  E.  724. 

48.  Blount  v.  Kimpton,  155  Mass.  378;    29  N.  E.  590;    31  A.  S.  R.  554. 

49.  Woburn  v.  Henshaw,  101  Mass.   193  ;    3  A.  R.  333. 
Eldridge  v.  State,  126  Ala.  63  ;    28  So.  580. 

50.  Duttonhofer  v.  State,  34  Oh.  St.  91;    32  A.  R.  362. 
Jones  v.  State,  65  Miss.  179;    3  So.  379. 

Tate  v.  Tate's  Ex.,  75  Va.   531. 
Bigler  v.  Reyher,  43  Ind.  112. 

61.     Kaufman  v.  Rosenshine,  97  App.  Div.  514;    90  N.  Y.  Supp.  205; 
Affirmed,  76  N.  E.  1098. 

52.  White  v.  Thacker,   78  Fed.  862;    24  C.  C.  A.  374. 

53.  West.  Union  v.  Tel.  Co.,  26  Fed.  55. 


PRIVILEGED  COMMUNICATIONS  199 

3.     PHYSICIAN  AND  PATIENT. 

A.  WHO  MAY  WAIVE  PRIVILEGE :— Sec. 
196.     Privileged  communications  between  a  patient 
and  his  physician  may  be  waived  'by  the  patient54,  or 
by  his  attorney55,  personal  representative56,  though 
not  by  an  executor  in  an  action  to  revoke  a  will57, 
heir-at-law58,  this   however,  being  denied   under   a 
statute  prohibiting  a  physician  from  testifying  with- 
out the  consent  of  his  patient59,  assignee  of  an  in- 
surance policy60,  beneficiary61,  guardian  of  a  minor62, 
parents  of  a  child  treated  by  the  physician63 ;  but  not, 
however,  by  the  husband  of  the  patient64,  and  it  is 
even  held  that  only  the  patient  can  waive  the  privi- 
lege66. 

B.  WHAT  AMOUNTS  TO  A  WAIVEiR:- 

Sec.  197.  The  privileged  character  of  communica- 
tions to  a  physician  may  be  waived  expressly  or  by 
implication.  And  express  waiver  arises  from  the  use 


54.  Davenport  v.  Hannibal,  108  Mo.  471 ;    18  S.  W.  1122. 
Thompson  v.  Ish,  99  Mo.  160;  12  S.  W.  510;'  17  A.  S.  R.  552. 
Grand  Rapids  Co.  v.  Martin,  41  Mich.  667  ;    3  N.  W.  173. 
Andrews  v.  Mut.  Assoc.,  34  Fed.  870. 

Denning  v.  Butcher,  91  la.  425  ;    59  N.  W.  69. 

55.  Albertl   v.    Ry.    Co.,    118    N.    Y.    77;     23    N.    E.    35 ;     6    L.    R.   A. 

765. 

56.  Fraser  v.  Jennison,  42  Mich.  206  ;    3  N.  W.  882. 
Morris  v.  Morris,  119  Ind.  341;    21  N.  E.  918. 

57.  Heaston  v.  Kreig,  77  N.  E.  805   (Ind.). 

58.  Staunton  v.  Parker,  19  Hun  55. 
Roche  v.  Nason,  77  N.  E.  1007   (N.  Y.). 

59.  Flint's  Estate,  100  Cal.  391 ;    34  Pac.  863. 

60.  Edington  v.  Ins.  Co.,   67   N.   Y.   196. 

61.  Penn.  Mut.   Co.  v.  Wller,    100   Ind.   92;     50   A.   R.   679. 

62.  Corey  v.  Bolton,  63  N.  Y.  Supp.  915. 

63      State  v.  Depositer,  21  Nev.  107 ;    25  Pac.  1000. 

64.     Cramer  v.  Hurt,   154  Mo.   112;    55   S.   W.  258;     77   A.   S.   R    752. 

65      Hunt's  Will,  122  Wis.  460;    100  N.  W.  874. 

Grattan  v.  Met.  Ins.  Co.,  80  N.  Y.  2S1 ;    35  A.  R.  617. 

Westover  v.  Aetna  Co..  99  N.  Y.  56;    1  N.  E.  104:    52  A.  R.  1. 

Harrison  v.  Sutler  Co.,  116  Cal.  167  ;    47  Pac.  1019. 


200  THE  LAW  OF  WAIVBE 

of  any  words  showing  the  necessary  intention66,  and 
also  it  is  an  express  waiver  to  call  the  physician  as 
a  witness  to  testify  as  to  such  communications67. 
But  it  is  more  difficult  to  determine  what  is  an  im- 
plied waiver.  Failing  to  object  when  the  privileged 
matter  is  inquired  about  has  'been  held  a  waiver68, 
although  this  has  been  denied69.  By  testifying  him- 
self as  to  the  communications,  a  patient  waives  his 
privilege70,  'but  not  by  stating  the  condition  of  his 
health71,  or  nature  of  his  injuries72,  nor  by  answer- 
ing on  cross-examination  when  the  communication 
has  not  been  testified  about  on  direct73,  nor  referred 
to  by  the  patient74,  it  being  said  that  such  testimony 
is  not  voluntary  so  as  to  constitute  a  waiver.  By 
stating  in  an  application  for  insurance  that  a  certain 


6«.     Foley  v.  Royal  Arcanum,  151  N.  Y.  196;    45  N.  E.  456;    56  A.  S. 

R.  121. 

Andreveno  v.  Mut.  Assoc.,  34  Fed.  870. 
Trull  v.  M.  W.  of  A.,  85  Pac.  1081  (Idaho). 

Fuller  v.  K.  of  P.,  129  N.  Car.  318;    40  S.  B.  65;    85   A.  S.  R. 
744. 

67.  Holcomb  v.  Harris,  166  N.  T.  263 ;    69  N.  E.  820. 

Albert!  v.  Ry.  Co.,  118  N.  Y.  77;    23  N.  E.  35 ;    6  L.  R.  A.  765. 
Carrlngton  v.  St.  Louis,  89  Mo.  216 ;    1  S.  W.  240 ;    58  A.  R.  108. 
Morris  v.  N.  Y.,  Etc.  Ry.  Co.,  148  N.  Y.  88;    42  N.  E.  410;    51 
A.  S.  R.  675. 

68.  Lincoln  v.  Detroit,  101  Mich.  245;    59  N.  W.  617. 
Lissak  v.  Crocker  Est.  Co.,  119  Cal.  442 ;    51  Pac.  688. 

89.     Penn.  Ry.  Co.  v.  Durkee,  147  Fed.  99. 

70.  Lane  v.  Bonicourt,  128  Ind.  420;    27  N.  E.  1111;    25  A.  S.  R.  442. 
Highmi  v.  Mo.  Pac.  Ry.,  93  Mo.  App.  219. 

Holloway  v.  Kans.  City,  etc.,  184  Mo.   19;    82  S.  W.  89. 

71.  McConnell  v.  Osage,  80  la.  293  :  45  N.  W.  550;  8  L.  R.  A.  778. 
May  v.  No.  Pac.  Ry.,  32  Mont.  522;    81  Pac.  328;    70  L.  R.  A. 

111. 

72.  Ind.,  Etc.  Co.  v.  Hall,  165  Ind.  557  ;    76  N.  E.  242. 
Fox  v.  Union  Co.,  69  N.  Y.  Supp.  551. 

73.  State  v.  White,  19  Kans.  445 ;    27  A.  R.  137. 
Hemenway  v.  Smith,  28  Vt.   701. 

Burgess  v.  Simms  Drug  Co.,  114  la.  275 ;    86  N.  W.  307 ;    89  A.  S. 
R.  359 ;    54  L.  R.  A.  364. 

74.  Butler  v.  Manhattan  Co.,  30  Abb.  N.  C.  78  ;    23  N.  Y.  Supp.  163. 


PBIVILEGED  COMMUNICATIONS  201 

physician  had  treated  him  for  a  certain  disease  is  a 
waiver  'by  the  patient  of  the  disability  of  the  physi- 
cian to  testify  concerning  the  disease75,  although  it 
would  have  been  different  if  the  disease  had  not  been 
named76.  Exhibiting  a  prescription  to  a  druggist 
who  fills  it  is  a  waiver  as  to  its  contents77 ;  and  intro- 
ducing in  evidence  records  of  a  hospital  is  a  waiver 
of  the  privileged  character  of  the  records78.  -Intro- 
ducing proofs  of  death  furnished  an  insurance  com- 
pany which  contain  an  affidavit  or  certificate  of  the 
attending  physician,  is  a  waiver  by  the  beneficiary 
of  the  privileged  character  of  the  testimony  of  the 
physician79.  A  waiver  of  the  privilege  as  to  one 
physician  is  not  a  waiver  as  to  another  who  treated 
the  patient  at  another  time80,  and  this  has  been  held 
true  even  where  the  patient  was  treated  by  two  phy- 
sicians at  the  same  time81,  although  such  doctrine 
has  been  denied82. 

While  one  in  full  possession  of  knowledge  of  his 
rights  as  to  allowing  communications  to  his  physi- 
cian to  be  disclosed  should  be  held  to  an  election 
once  fairly  made,  the  courts  are  not  reconciled  as  to 


75.  Brown  v.  Met.  Ins.  Co.,   65  Mich.  306;    32  N.  W.  610;    8  A.   S. 

R.   894. 

76.  Jones  v.  Assur.  Co.,  120  Mich.  211 ;    79  N.  W.  204. 

77.  Deutschman  v.  Ry.  Co.,  84  N.  T.  Supp.  887. 

78.  Kemp  v.  Met.  Ry.,  88  N.  T.  Supp.   1. 

79.  Helwig  v.  Mut.  Ins.  Co.,  132  N.  T.   331;    30   N.  E.   834;    28   A. 

S.  R.  578. 

SO.     Green  v.  Nebagamain,  113  Wis.  508 ;    89  N.  W.  520. 
Webb  v.  Met.  Ry.  Co.,  89  Mo.  App.  604. 

81.  Mellor  v.  Mo.  Pac.  Ry.,  105  Mo.  455  ;  10  L,  .R.  A.  36. 

82.  Morris  v.   N.   T.,   Etc.   Ry..    148   N.   T.    88;     42    N.   E.    410;     51 

A.  S.  R.  675. 


202  THE  LAW  OF  WAIVER 

whether  a  waiver  of  the  privilege  once  made  is  re- 
vocable83, or  irrevocable84. 

4.  HUSBAND  AND  WIFE:— Sec.  198. 
Whether  the  privileged  character  of  communica- 
tions between  husband  and  wife  can  be  waived  de- 
pends upon  statutory  provisions,  and  often  upon  the 
particular  wording  of  the  statute.  The  privilege 
cannot  be  waived  under  a  statute  providing  that 
"  Neither  spouse  shall  be  permitted  to  disclose  any 
communication  made  to  him  or  her  during  their 
marriage"85.  But  in  the  absence  of  statutory  pro- 
hibition, it  would  seem  that  one  entitled  to  insist 
on  the  privilege  should  be  allowed  to  waive  it.  It  has 
been  held,  however,  that  the  concurrence  of  both 
spouses  is  essential  to  constitute  a  waiver86.  But  the 
better  rule  is  that  the  one  making  the  communica- 
tion should  be  entitled  to  waive  its  privileged  char- 
acter87, although  the  waiver  cannot  be  made  by  a 
personal  representative.  If  on  cross-examination 
one  spouse  voluntarily  state  part  of  a  conversation 
with  the  other,  he  can  'be  compelled  to  disclose  all  of 
it88 ;  and  he  waives  his  privilege  by  failing  to  object 
when  the  communication  is  inquired  atoout89,  by  in- 


83.  McKinney  v.  Grand  St.  Ry.,  104  N.  Y.  352  ;    10  N.  E.  544. 
Grattan  v.  Met.  Ins.  Co.,  92  N.  T.  274 ;    44  A.  R.  372. 

84.  Burgess  v.   Sims  Drug  Co.,   114  la.   276;     86  N.  W.   307;     89  A. 

S.  R.  359  ;  54  L.  R.  A.  364. 
Breisenmeister  v.  K.  of  P.,  81  Mich.  525 ;    45  N.  W.  977. 

85.  Robinson    v.    Robinson,    22    R.    I.    121;     46    Atl.    455;     84    A.    S. 

R.  832. 

86.  Derham  v.  Derham,  125  Mich.  109  ;    83  N.  W.  1005. 

87.  Stickney  v.  Stickney,  131  M.  S.  227. 

88.  State  v.  Turner,  36  S.  Car.  534 ;    15  S.  E.  602. 

89.  Norris  v.  Stewart's  Heirs,  105  N.  Car.  455;    10  S.  E.  912;    18  A. 

S.  R.  917. 

German  v.  German,  7  Coldw.  180   (Tenn.). 
Parkhurst  v.  Berdell,   110  N.  Y.  386 ;    18  N.  E.   123  ;     6  A.  S.  R. 

384. 


PRIVILEGED  COMMUNICATIONS  203 

terrogating  his  spouse  concerning  it90,  or  by  testify- 
ing about  it  himself91.  But  if  he  does  not  refer  to  it 
on  direct  he  cannot  be  asked  about  it  on  cross-exam- 
ination92. And  where  the  husband  or  wife  either 
makes  the  communication  public  by  giving  it  to  an- 
other, the  privilege  is  lost93,  as  if  one  voluntarily 
gives  to  a  third  person  letters  received  from  the 
other  spouse,  the  privilege  is  waived94. 


90.  Columbia,  Etc.  Ry.  v.  Hawthorne,  3  Wash.  353  ;    19  Pac.  25. 
Dickerman  v.  Graves,  6  Gush.  308;    53  A.  D.  41. 

91.  Id. 

92.  Williams  v.  State,  40  Tex.  Crim.  570  ;    51  S.  W.  224. 
People  v.  Garner,  72  N.  T.  Supp.  66. 

People  v.  Mullings,  83  Cal.  138 ;    23  Pac.  229  ;  17  A.  S.  R.  223. 

93.  State  v.  Hoyt,  47  Conn.  540  ;    36  A.  R.  89. 
State  v.  Buffington,  20  Kans.  599  ;    27  A.  R.  193. 

94.  People  v.  Hayes,  140  N.  Y.  484;    35  N.  E.  951;    37  A.  S.  R.  572. 
See :    Lloyd  v.  Pennie,  50  Fed.  4. 

Com.  r.  Sapp,  90  Ky.  580;    14   S.  W.  834;    29  A.  S.  R.  405  and 
note. 


20*  THE  LAW  OF  WAIVES 

CHAPTER  9. 

REDEMPTION. 

Section 
1.     UNOBSR  MORTGAGES — 

A.    By  Concurrent  Agreement — 

(1)  In  mortgage ....-, 199 

(2)  By  separate  instrument 202 

D.     By  Subsequent  Agreement 205 

O.    By  Laches 210 

D.    By  other  conduct •„•. .  2'13 

A.     BY  CONCURRENT  AGREEMENT — 

(1)  IN  MORTGAGE  :-^Sec.  199.  At  common 
law  a  failure  on  the  part  of  a  mortgagor  in  strict 
fulfillment  of  the  conditions  of  his  mortgage  result- 
ed in  the  loss  forever  of  his  whole  estate.  To  pre- 
vent the  hardships  and  injustice  that  arose  from  the 
enforcement  of  such  a  drastic  rule,  courts  of  equity 
created  and  impliedly  reserved  to  every  mortgagor 
an  equity  of  redemption,  an  estate  separate  and  dis- 
tinct from  the  rights  vested  in  the  mortgagee  and 
indefinite  in  its  duration,  under  which  he  was  given 
the  right  to  regain  his  whole  estate  within  a  reason- 
able time  by  paying  the  debt  and  all  proper  charges 
thereon.  However,  it  is  now  usual  for  statutes  to 
provide  a  time  within  which  the  right  to  redeem 
must  be  exercised,  and  when  such  is  provided  it  is 
conclusive  as  to  the  time. 

Sec.  200.  The  protection  afforded  the  mortga- 
gor is  of  still  further  extent.  It  is  practically  the  uni- 
versal holding  that  he  cannot,  by  any  statement  or 
provision  in  the  mortgage  itself,  bar  himself  from 
the  right  to  have  and  exercise  this  equity  of  redemp- 
tion ;  and  that  no  agreement  at  the  time  the  mortgage 
is  executed  that  in  default  of  the  mortgagor  the  pur- 


REDEMPTION"  20» 

chaser  shall  become  absolute  owner  of  the  premise* 
shall  be  permitted  to  bar  the  right  to  redeem  if  it 
once  existed95.  The  reasons  actuating  courts  in  pro- 
mulgating and  applying  such  a  rule  are  identical 
with  those  influencing  them  in  refusing  to  permit  a 
debtor  to  waive  in  advance  the  exemptions  allowed 
to  him  by  law  for  the  benefit  of  himself  and  those 
depending  upon  him.  Were  the  rule  different,  dire 
necessity  would  frequently  compel  debtors  to  enter 
into  such  inequitable  agreements;  but  by  reason  of 
the  beneficent  cloak  of  protection  thrown  around 
them  by  the  courts  and  by  statutory  provisions,  it 
matters  not  how  clearly  expressed  may  be  the  inten- 
tion of  the  parties  to  waive  or  release  the  equity  of  re- 
demption through  provisions  in  the  mortgage,  this 
intent  is  contrary  to  all  principles  of  equity  and  wifl 
not  be  given  effect96. 

Sec.  201.  And  it  makes  no  difference  that  tha 
instrument  containing  a  waiver  of  the  right  to  re- 
deem is  not  in  the  form  of  a  mortgage.  It  may  be  a 
deed  otherwise  absolute  on  its  face,  or  it  may  assume 
any  other  form.  The  criterion  by  which  the  transac- 
tion is  to  be  guaged  is  whether  or  not  the  instrument 
is  security  for  a  debt ;  if  it  be,  then  the  right  of  re- 
demption becomes  so  inseparably  a  part  of  it  that  it 


15.     Gillis  v.  Martin,  2  Dev.  Eq.  470  (N.  Car.)  ;    25  A.  D.  7J». 

Peugh  v.  Davis,  96  U.  S.  322;    24  L.  Ed.  775. 
Clark  v.  Condit,  18  N.  J.  Eq.  358. 
Wilson  v.  Drumrite,  21  Mo.  325. 
Quartermous  v.  Kennedy,  29  Ark.  544. 
Lousbury  v.   Norton,   59   Conn.    170. 
Turpie  v.  Lowe,  114  Ind.  37 ;    15  N.  E.  834. 
Shank  v.  Groff,  43  W.  Va.  337;    27  S.  E.  340. 
Batty  v.   Snook,   5   Mich.   231. 

t«.     Kayley  v.  Bailey,  5  Gray  505   (Mass.)  ;    71  Mast.  IOS. 
Jackson  v.  Lynch,  129  111.  72 ;    22  N.  E.  24«. 


206  THE  LAW  OF  WAIVES 

cannot  be  waived  or  released  by  any  declaration  or 
provision  therein97.  So,  an  absolute  conveyance  cou- 
pled with  an  agreement  that  it  shall  be  void  if  a 
certain  debt  due  the  grantee  is  paid  within  a  year  is, 
in  equity,  a  mortgage,  and  the  grantor  has  the  right 
to  redeem  by  paying  the  debt08.  The  want  of  a  cove- 
nant for  the  repayment  of  the  mortgage  money  is  no 
bar  to  redemption,  for  every  mortgage  implies  a 
loan,  and  every  loan  and  every  debt  is  a  promise  to 
pay". 

2.    BY    SEPAEATE    INSTEUMENT :— Sec. 

202.  The  principles  above  announced  hold  good  if 
the  waiver  or  release  be  contained  in  a  separate  in- 
strument executed  concurrently  with  the  mortgage 
or  other  conveyance.  Thus,  a  grantor  executed  and 
delivered  a  deed  absolute  in  form;  the  grantee,  in 
turn,  executed  and  delivered  to  the  grantor  an  instru- 
ment providing  that  if  the  debt  should  be  paid  within 
a  year  then  the  deed  should  be  void ;  the  grantee  sub- 
sequently through  misrepresentations  induced  the 
grantor  to  surrender  the  latter  instrument  and  at 
once  took  possession  under  the  deed;  the  grantor 
brought  action  to  set  aside  the  deed  and  for  other 
relief.  The  court  held,  among  other  things,  that  if 
an  instrument  is  once  a  mortgage  it  is  always  a  mort- 
gage, the  effect  of  which  is  to  protect  borrowers  from 
being  forced  by  their  necessities  into  unequal  and 


97.  Plato  v.  Roe,  14  Wis.  543. 
Jackson  v.  Lynch,  supra. 
Linnell  v.  Lyford,  72  Me.  280. 

Fields  v.  Helms,  82  Ala.  449  ;    3  So.  106. 
Lender  v.  Caldwell,  4  Kans.  339. 

98.  Toule  v.  Richards,  1  Saxt.  Ch.  534   (N.  J.)  ;    23  A.  D.  722. 

99.  Critcher  v.  Walker,  1  Murph.  488   (N.  Car.)  ;    4  A.  D.  576. 


REDEMPTION"  207 

oppressive  bargains;  that  if  the  conveyance  is  a 
mortgage  in  the  beginning,  the  right  of  redemption 
is  an  independent  incident  and  cannot  be  restrained 
or  clogged  by  agreements100. 

Sec.  203.  And  it  is  the  general  rule,  almost  uni- 
versally applied,  that  where  an  absolute  conveyance 
is  accompanied  by  another  instrument  of  defeasance 
providing  that  the  property  shall  be  reconveyed  upon 
payment  of  a  debt  or  the  performance  of  some  other 
condition  secured  by  such  conveyance,  the  two  in- 
struments together  are  a  mortgage  and  the  right  of 
redemption  is  a  necessary  ingredient  of  the  transac- 
tion1 ;  and  such  instrument,  separate  from  the  con- 
veyance proper,  can  no  more  cut  off,  restrain,  waive 
or  release  the  equity  of  redemption  than  the  convey- 
ance itself  might.  And  in  such  a  case  the  grantor's 
right  to  redeem  is  not  affected  by  receipts  and  ac- 
counts given  him  reciting  and  recognizing  the  deed  as 
an  absolute  conveyance3.  Nor  is  the  right  to  redeem 
affected  by  the  fact  that  the  grantor,  holding  the  se- 
parate instrument  of  defeasance,  withheld  same  from 
the  public  records  for  the  purpo.se  of  misleading  and 
delaying  his  creditors3. 

Sec.  204.  One  case  in  Colorado  seems  at  vari- 
ance with  the  foregoing,  for  it  is  said  that  the  parties 
may  stipulate  in  a  trust  deed  that  no  right  of  re- 


100.     Youle  v.  Richards,  supra. 

Henry  v.  Davis,  7  Johns.  Ch.  42. 

1.  Dubuque  Bank  v.  Weed,  57  Fed.  513. 

Bunker  v.  Barren,  79  Me.  62  ;    8  Atl.  253 ;    1  A.  S.  R.  282. 
Halsey  v.  Martin,  22  Cal.  645. 
Freeman  v.  Wilson,  51  Miss.  329. 
Lanahan  v.   Sears,   102  U.  S.   318 ;    26  L.  Ed.   180. 

2.  Bayley  v.  Bailey,  5  Gray  505   (Mass.)  ;    71  Mass.  505. 

3.  Clark  v.  Condit,  18  N.  J.  Eq.  358. 


208  THE  LAW  OF  WAIVER 

demption  shall  remain  to  the  grantor  and  that  such 
stipulation  shall  be  given  effect4.  But  the  decided 
preponderance  of  authority  supports  the  doctrine 
that  irrespective  of  the  intention  of  the  parties,  a 
mortgagor  has  the  right  to  redeem  his  estate,  a 
right  which  he  cannot  waive  or  release  either  by  a 
provision  to  that  effect  in  the  mortgage  or  other  con- 
veyance as  security,  or  by  a  separate  instrument  exe- 
cuted and  delivered  concurrently  with  the  convey- 
ance5. 

B.  BY  SUBSEQUENT  AGREEMENT :— Sec. 
205.  As  has  been  above  noted,  equity  will  narrowly 
scan  transactions  wherein  one  party  is  in  a  position 
to  exercise  undue  pressure  upon  the  other,  and  it  is 
for  such  reason  that  a  mortgagor  is  not  permitted 
to  alienate  his  right  of  redemption  at  the  time  of 
making  the  loan.  At  such  time  the  exigences  of  his 
condition  may  be  such  that  an  unscrupulous  lender 
would  prey  upon  his  necessities  for  the  purpose  of 
exacting  a  grossly  inequitable  bargain;  and  the  se- 
curing instrument,  while  showing  on  its  face  a 
straight  and  voluntary  transaction,  would  in  ef- 
fect be  an  expression  of  the  straights  to  which  the 
grantor  had  been  driven  by  untoward  circumstances. 

Sec.  206.  But  these  conditions  do  not  exist  after 
the  making  of  the  original  agreement.  The  mort- 
gagor has  relieved  himself  temporarily  by  means  of 
the  transaction  and  is  in  a  better  position  to  combat 
any  exacting  designs  that  might  be  attempted  by  the 


4.     Nippel  v.  Hammond,  4  Colo.  211. 

6.     Boyd  v.  Roane,  49  Ark.  397 ;    6  S.  W.  704. 

Shields  v.  Russell.  66  Hun  220;     20  N.  T.  Supp.   809. 

Affirmed:    142  N.  T.  290;    36  N.  E.  1061. 


REDEMPTION  200 

mortgagee.  And  while  it  is  said  that  an  agreement 
subsequent  to  the  mortgage  by  which  the  entire  es- 
tate of  the  mortgagor  is  to  become  absolute  in  the 
mortgagee  if  the  debt  be  not  paid  by  the  specified 
date  will  be  viewed  suspiciously  and  watched  narrow- 
ly6, yet  it  is  the  general  rule,  subject  to  a  few  excep- 
tions, that  the  mortgagor  may,  subsequent  to  the  ex- 
ecution of  the  mortgage,  release  or  waive  his  equity 
of  redemption;  but  such  release  or  waiver  must  be 
voluntarily  given  for  a  sufficient  consideration  and 
without  fraud  or  undue  influence  on  the  part  of  the 
mortgagee7. 

Sec.  207.  The  mode  of  evidencing  such  waiver 
is  immaterial.  It  may  be  made  by  a  separate  instru- 
ment expressly  releasing  the  equity  of  redemption, 
or  the  owner  of  the  equity  may  convey  the  premises 
to  the  mortgagee  and  thus  waive  or  cut  off  his  right 
to  redeem8.  But  it  is  said  that  such  a  conveyance 
is  not  a  waiver  or  extinguishment  of  the  right  to  re- 
deem unless  it  was  accepted  as  a  full  payment  of  the 
debt9,  and,  again,  if  the  mortgagee  use  the  power  of 
his  mortgage  to  procure  the  equity  of  redemption 
for  less  than  its  value,  equity  will  yet  permit  the 


«.     Hyndman  v.  Hyndman,  19  Vt.  9  ;    46  A.  D.  171. 
Linnell  v.  Lyford,  72  Me.  280. 

7.  Wilson  v.  Vanstone,  112  Mo.  315;    20  S.  W.  612. 
Villa  v.  Rodriguez,  12  Wall.  323    (U.  S.). 
Moeller  v.  Moore,  80  Wis.  434;    50  N.  W.  396. 
Watson  v.  Edwards,  105  Cal.  70 ;    38  Pac.  527. 
Vennum  v.  Babcock,  13  la.  194. 

Seymour  v.  Mackay,  126  111.  341 ;    18  N.  E.  552. 
Hoover  v.  Johnson,  47  Minn.  434;    50  N.  W.  475. 
Shaw  v.  Walbridge,  33   Oh.  St.  1. 
4  Kent,  Com.  Art.  143. 
Marshall  v.  Stewart,  17  Oh.  356. 

8.  Braun  v.  Vollmer,  85  N.  T.  Supp.  319;    89  App.  Dlv.  41. 
t.    Robertson  v.  Wheeler,  162  111.  566 ;   44  N.  E.  870. 


210  THE  LAW  OF  WAIVER 

mortgagor  to  redeem10.  In  another  case  it  was  held 
that  if  a  mortgagor  convey  the  premises  to  the  mort- 
gagee for  no  other  consideration  than  the  satisfac- 
tion of  the  debt,  the  burden  is  on  the  latter,  if  the 
transaction  be  attacked  for  fraud,  to  show  that  it 
was  fair  and  that  the  conveyance  of  the  equity  of 
redemption  was  voluntarily  and  intelligently  given 
upon  a  contract  of  sale  entirely  disconnected  from 
the  mortgage  contract11. 

Sec.  208.  But  there  is  no  good  reason  why  a 
mortgagee  may  not  purchase  from  and  deal  with 
the  mortgagor  as  freely  as  any  third  person  might. 
The  subsequent  release  or  waiver  of  the  equity  of 
redemption  by  the  mortgagor  to  the  mortgagee  is  a 
matter  of  common  occurrence,  and  there  is  nothing 
in  the  policy  of  the  law  that  forbids  such  transfer. 
But  as  the  mortgagee,  particularly  if  in  possession, 
may  exercise  an  undue  and  improper  influence  over 
the  mortgagor,  especially  if  the  latter  be  in  needy 
circumstances,  the  transaction  will  always  be  closely 
scrutinized  so  as  to  prevent  any  oppression  of  the 
debtor;  and  it  seems  that  only  constructive  fraud 
or  an  unconscientious  advantage  which  ought  not  to 
be  retained  need  be  shown  to  avoid  such  a  purchase^ 
If  the  sale  be  made  for  a  fair  price  and  upon  a  full 
consideration,  or  under  circumstances  where  the 
mortgagor  could  exercise  an  unembarrassed  will,  the 
relationship  of  the  parties  would,  of  course,  form 
no  objection;  yet  courts  view  all  transactions  be- 
tween mortgagor  and  mortgagee  with  considerable- 


!•.     Noble  v.  Graham,  140  Ala.  413  ;    37  So.  230. 

11.     Hall  v.  Hall,  41  S.  Car.  163  ;    44  A.  S.  R.  696,  citing: 

Russell  v.  Southard,  12  How.  139   (U.  S.). 

Jones  on  Mortgages,  Sec.  711. 


REDEMPTION  211 

jealousy  and  will  set  aside  such  sales  whenever,  by 
the  influence  of  his  incurabrance,  the  mortgagee  has 
purchased  for  a  consideration  grossly  inadequate  or 
for  less  than  others  would  have  given12. 

Sec.  209.  The  release  or  waiver  of  the  equity 
of  redemption  may  be  made  by  a  parol  agreement, 
according  to  the  decided  cases.  And  it  is  said  that 
the  grantor  will  not  be  permitted  to  invoke  the  stat- 
ute of  frauds  where  he  has  executed  an  absolute  deed 
which  in  fact  was  but  security  for  a  debt  but  subse- 
quently he  has  by  a  parol  agreement  waived  or  re- 
leased his  equity13.  But  this  ruling  appears  to  us 
of  questionable  propriety,  to  say  the  least.  The 
equity  of  redemption  is  an  estate  in  lands  reserved 
to  the  mortgagor  by  law  if  not  by  the  instrument  it- 
self. The  opportunities  for  fraud  or  undue  influ- 
ence are  equal  to  if  not  greater  than  those  in  any 
other  classes  of  land  transactions.  And  in  the  waiv- 
er of  this  right  not  only  should  there  be  a  sufficient 
consideration,  but  the  transaction  should  be  evi- 
denced by  an  instrument  of  writing  according  to 
the  requirements  of  the  statute  of  frauds.  The  fact 


12.     II  Warvelle  on  Vendors,  citing: 

Russell  v.  Southard,  12  How.  139. 

Pugh  v.  Davis,  96  U.  S.  337. 

Holdridge  v.  Gillespie,  2  Johns.  Ch.  34  (N.  Y.). 

Oliver  v.  Cunningham,  7  Fed.  689. 

See,  also:    2  Washburn,  Real  Property,  Sees.  23-24. 

Ten  Eyck  v.  Craig,  62  N.  T.  406  ;    2  Hun  452. 

Dennis  v.  Tomlinson,  49  Ark.  568;    6  S.  W.  11. 

Phelan  v.  De  Martin,  85  Cal.  365 ;    24  Pac.  725. 

Hinkley  v.  Wheelwright,  29  Md.  341. 

Clark  v.  Clough,  65  N.  H.  43  ;    23  Atl.  526. 

Bagler  v.  Stabler,  91  Ala.  308;    9  So.  157. 
It.     Bazemore  v.  Mullins,  52  Ark.  207 ;    12  S.  W.  474, 

McMillan  v.   Jewett.   86  Ala.   476;   5   So.   145. 

Shaw  v.  Walbridge,  33  Oh.  St.  1. 

Phelps  v.  Seely,  22  Gratt.  573  (Va.). 


212  THE  LAW  OF  WAIVES 

that  the  mortgage  is  in  the  form  of  a  deed  absolute 
should  make  no  difference.  If  once  a  mortgage,  it 
can  have  no  further  effect  than  as  a  mortgage,  and 
where  fraud  could  enter  so  easily  the  doors  should 
not  be  opened  by  permitting  the  nature  of  the  instru- 
ment to  be  changed  by  a  parol  agreement  of  the 
parties14. 

C.  BY  LACHES :— Sec.  210.  The  right  of  re- 
demption is  an  equitable  right.  And  in  equity  it  is 
the  rule  that  when  the  court  is  asked  to  lend  its  aid 
in  the  enforcement  of  a  demand  that  has  become 
stale,  there  must  be  some  cogent  and  weighty  reasons 
presented  why  it  has  been  permitted  to  become  so. 
Good  faith,  conscience  and  reasonable  diligence  of 
the  party  seeking  relief  are  the  elements  that  call  a 
court  of  equity  into  action.  In  the  absence  of  those 
elements  the  court  becomes  passive  and  refuses  to  ex- 
tend its  relief  or  aid15.  Therefore,  he  who  is  en- 
titled to  redeem  from  a  mortgage  must  be  reason- 
ably diligent  in  the  exercise  of  that  right  and  must 
assert  it  within  a  reasonable  time  and  before  the 
situation  of  the  parties  has  changed  or  the  rights 
of  innocent  third  parties  have  intervened.  For  to 
sit  idly  by  and  permit  any  of  these  conditions  to 
arise  with  knowledge  of  his  right  to  redeem  would 
amount  to  a  waiver  of  the  equity.  In  other  words, 
the  laches  of  the  owner  of  the  right  of  redemption 
in  asserting  it  is  a  bar  to  that  right16. 


14.  See:    Keller  v.  Kirby.  34  Tex.  Civ.  App.  404;    79  S.  W.  82. 

15.  McDearmon  v.  Burnham,  158  111.  62;    41  N.  E.  1094. 

16.  Bergen  v.  Bennett,  1  Cal.  Gas.  1   (N.  Y.)  ;    2  A.  D.  281. 
Hall  v.  Westcott,  15  R.  I.  375;    5  Atl.  629. 

McAoee  v.  Harrison,  50  S.  Car.  39 ;    27  S.  E.  539. 
Askew  v.  Sanders,  84  Ala.  356;    4  So.  167. 


REDEMPTION  213 

Sec.  211.  Many  states  have  by  legislative  enact- 
ments provided  a  time  within  which  the  right  to  re- 
deem must  be  exercised.  Of  course,  where  there  is 
such  a  provision,  it  is  conclusive  as  to  time,  and  a 
lapse  of  the  specified  time  without  redemption 
Avaives  the  right  absolutely.  But  in  the  absence  of 
such  a  statute,  as  above  noted,  acquiescing  for  more 
than  a  reasonable  time,  is  a  bar  also;  and  here,  as 
in  all  other  cases,  what  is  a  reasonable  time  is  to  be 
determined  by  all  the  facts  surrounding  any  particu- 
lar transaction. 

Sec.  212.  Thus,  in  one  case  it  was  said  that 
four  years  after  he  has  knowledge  of  the  sale  and 
proceedings,  during  which  time  he  has  remained  in- 
active and  acquiesced,  is  too  late  to  redeem  and  he 
is  barred  of  his  right17.  In  another  it  was  held  that 
the  equity  of  redemption  from  a  mortgage  foreclos- 
ure cannot  be  enforced  when  all  parties  have  sup- 
posed that  the  foreclosure  was  good  and  the  holder 
of  the  equity  has  abandoned  the  premises  and  all 
claim  to  them,  never  paying  any  taxes  or  offering  to 
redeem  until  after  a  series  of  years  when  the  proper- 
ty has  passed  through  several  hands  and  become 
valuable18.  So,  a  delay  of  sixteen  years  has  been 
held  fatal19,  and  five  years20,  and  the  lapse  of  any 
period  of  time  evidencing  in  the  particular  case  an 
election  by  the  mortgagor  to  permit  the  sale  to 
stand.  A  grantor  in  an  absolute  deed  acquiesced  in 
the  transaction  for  a  period  of  six  years,  paid  no 


17.  Hamilton  v.  Lubukee,  51  111.  415;    99  A.  D.  562. 
Ryan  v.  Kales,  20  Pac.  311  (Ariz.). 

18.  Walker  v.  Warner,  179  HI.  16;    53  N.  E.  549  ;    70  A.  S.  R.  85. 

19.  Bergen  v.  Bennett,  1  Cal.  Cas.  1  (N.  Y.)  ;    2  A.  D.  281. 

20.  Danforth  v.  Roberts,  20  Me.  307. 


214  THE  LAW  OF  WAIVER 

taxes  on  the  property,  and  made  no  objection  while 
the  grantee  made  valuable  and  expensive  improve- 
ments, and  it  was  held  that  he  could  not  then  claim 
that  the  conveyance  was  only  a  mortgage  given  to 
secure  a  debt  after  he  had  thus  slept  on  his  rights 
and  induced  others  to  act  on  the  belief  that  he  had 
abandoned  them21.  And  the  same  decision  was 
reached  in  another  case  where  the  delay  was  for  nine- 
teen years22;  and  fourteen  years23;  and  nine  years 
and  ten  months24 ;  and  seven  years25 ;  and  even  three 
years26 ;  all  of  which  have,  under  a  variety  of  facts 
and  circumstances,  been  held  sufficient  delay  to  con- 
stitute laches  in  asserting  the  right  to  redeem  and, 
consequently,  a  waiver  of  such  right  which  cannot 
then  be  taken  advantage  of27. 

D.  BY  OTHER  CONDUCT :— Sec.  213.  A  mort- 
gagor may  bar  himself  of  his  right  to  redeem  in  a 
variety  of  methods  not  hereinbefore  mentioned.  It 
is  sufficient  if  his  conduct  evince  that  intention,  pro- 
vided a  sufficient  consideration  has  passed,  which 
may  be  a  benefit  to  himself  or  a  detriment  to  the 
mortgagee.  A  waiver  was  held  to  have  been  pro- 
duced by  the  conduct  of  the  mortgagor  in  encourag- 
ing another  to  buy  the  property  by  promising  not  to 


21.  Schradski  v.  Albright,  93  Mo.  42 ;    5  S.  W.  807.  • 

22.  Ketchum  v.  Johnson's  Ex'rs.,  4  N.  J.  Eq.  370. 

23.  McDearmon  v.  Burnham,  158  111.  55  ;    41  N.  E.  1094. 

24.  Askew  v.  Sanders,  84  Ala.  356 ;    3  So.  167. 

25.  Munn  v.  Surges,  70  111.  604. 

26.  Kline  v.  Vogel,  90  Mo.  239  ;    1  S.  W.  733  and  2  S.  W.  408. 

27.  Tetrault  v.  Fournier,  187  Mass.  58;    72  N.  E.  351. 
Mann  v.  Jobusch,  70  111.  App.  440. 

Baker  v.  Bailey,  204  Pa.  St.  524;    53  Atl.  868. 
MacGregor  v.  Pierce,  17  S.  Dak.  51 ;    95  N.  W.  281. 
Snipes  v.  Kelleher,  31  Wash.  386 ;    72  Pac.  67. 


REDEMPTION  215 

redeem28;  also  where  the  mortgagor  agreed  during 
foreclosure  that  the  property  might  be  sold  in 
fee  simple  free  of  all  conditions,  limitations  or 
restrictions29.  Or  if  he  remains  inactive  during  the 
whole  redemption  period  and  acquiesces  in  the  de- 
livery of  a  sheriff's  deed  to  one  who  does  redeem30, 
or  accepts  a  deed  to  a  portion  of  the  mortgaged 
premises  in  satisfaction  of  his  claim  of  the  right  to 
redeem31,  or  if  he  agrees  that  the  grantee  of  a  deed 
absolute,  given  as  security,  shall  convey  the  prem- 
ises to  another32,  or  where  he  joined  with  the  mort- 
gagee in  making  a  sale  of  the  mortgaged  premises, 
agreed  to  give  warranted  title  and  possession,  re- 
ceived a  part  of  the  purchase-money  and  permitted 
the  purchaser  to  enter  into  possession33 — in  each  of 
these  cases  the  mortgagor  was  refused  the  right  to 
redeem. 

Sec.  214.  But  at  the  time  of  the  alleged  waiver 
of  the  right  to  redeem,  the  one  having  the  right  must 
have  knowledge  of  it.  Thus,  it  was  held  that  one 
ignorant  of  his  right  to  redeem  did  not  debar  him- 
self from  the  privilege  by  agreeing  to  give  posses- 
sion of  the  premises  prior  to  the  expiration .  of  the 
period  allowed  for  redemption,  even  where  a  pur- 
chaser was  induced  by  such  agreement  to  buy  the 
property  and  make  improvements  thereon34. 


28.  Southard  v.  Sutton,  68  Me.  575. 

Fay  v.  Valentine,  12  Pick.  40  ;    22  A.  D.  397. 
Woods  v.  McGarock,  18  Tenn.  133. 

29.  King  v.  King,  215  111.  100  ;    74  N.  E.  89. 

30.  MacGregor  v.  Pierce,  17  S.  Dak.  51;    95  N.  W.  281. 

31.  Bedford  v.  Moore,  54  Mo.  448. 

32.  Noxon  v.  Glen,  2  N.  Y.  St.  R.  661. 

33.  Wright  v.  Whithead,  14  Vt.  268. 

34.  Wood  v.  Holland,  64  Ark.  104 ;    40  S.  W.  704. 


THE  LAW  OP  WAIVES 

CHAPTER  10. 

STATUTE  OP  LIMITATIONS. 

Section 

1.  PREiLIiMiIlNARY 21i5 

2.  ACKNOWLEDGMENT    OF    DEOBT    219 

3.  NEW  PROMISE  TO  PAY 222 

A.     Part  Payment 224 

4.  FAILURE  TO  PLEAD  TOE  STATUTE — 

A.  In  Civil  Actions 22,5 

B.  In  Criminal  Cases 226 

1.  PRELIMINARY:— Sec.  215.  Statutes  of 
limitation  are  statutes  of  repose  to  be  liberally  con- 
strued with  reference  to  the  attainment  of  the  ob- 
ject and  purpose  of  their  existence.  The  statutes 
affect  the  remedy  and  not  the  right  or  defense  itself 
nor  the  moral  obligation  of  one  person  to  discharge 
a  duty  owing  by  him  to  another.  The  right  to  rely 
upon  and  take  advantage  of  a  statute  of  limitation 
is  a  personal  right  belonging  to  the  debtor  in  any 
particular  case,  and  is  a  right  strictly  within  his 
province  to  invoke  or  disregard  as  he  may  elect.  No 
one  can  compel  him  to  take  advantage  of  it,  and 
neither  can  he  be  coerced  into  relinquishing  its  ad- 
vantages35. So,  at  the  trial  of  an  action  a  debtor 
may,  even  over  the  protest  and  objection  of  his  at- 
torney, refuse  to  avail  himself  of  the  benefit  of  the 
statute36 ;  and,  on  the  other  hand,  he  may  invoke  its 
protection  despite  the  attempts  of  his  counsel  to 
surrender  it37,  unless  the  attorney  was  expressly 
authorized  in  that  behalf. 


15.     Allen  v.  Smith,  129  U.  S.  470. 

Sheppard's  Estate,  180  Pa.  St.  67;   36  Atl.  422. 

Kennedy  v.  Powell,  34  Kans.  23 ;    7  Pac.  606. 
36.     Lewis  v.  Buckley,  73  Miss.  58;    19  So.  197. 
$7.     Spreckels  v.  Ord,  72  Cal.  86 ;    13  Pac.  158. 


STATUTE  OF  LIMITATIONS  217 

Sec.  216.  In  taking  advantage  or  failing  to 
take  advantage  of  the  statute  of  limitations,  two 
principles  are  involved — that  of  election  and  that  of 
waiver.  The  consideration  of  one  necessarily  in- 
cludes the  other,  for  in  this  connection  a  waiver 
either  expressly  or  inferentially  means  that  the 
debtor  elects  to  forego  a  right  that  he  might  avail 
himself  of.  Therefore,  it  follows  that  a  waiver  may 
be  produced  by  one  of  two  means — by  an  agree- 
ment to  that  effect  and  by  conduct  inconsistent  with 
an  intention  to  invoke  the  statute.  Where  the  waiv- 
er relied  on  is  one  produced  by  agreement,  no  special 
form  of  language  is  essential  to  its  validity.  The 
necessary  ingredient  is  that  the  plain  intent  and  pur- 
port of  the  words  used,  are  to  waive  the  benefit  of 
the  statute38.  And  it  is  not  required  that  such  agree- 
ment shall  be  in  writing,  even  where  the  statute  re- 
quires a  written  promise  to  pay  or  acknowledgment 
of  the  debt39. 

Sec.  217.  Whether  or  not  a  consideration  is 
requisite  to  'a  valid  agreement  to  waive  the  statute 
depends  somewhat  upon  the  time  when  the  agree- 
ment is  made,  although  other  than  from  theoretical 
considerations  the  question  has  but  little  to  do  with 
the  waiver.  For  if  the  agreement  be  made  prior 
to  the  bar  of  the  statute,  the  forbearance  to  sue, 


88.     Burton  v.  Stevens,  24  Vt.  131 ;    68  A.  D.  153. 

Jordan  v.  Jordan,  85  Tenn.  563  ;    3  S.  W.  896. 

In  re  King.  94  Mich.  411 ;   54  N.  W.  178. 

Bridges  v.  Stephens,  132  Mo.  524 ;    34  S.  W.  555. 
39.     Lewis  v.  Buckley,  73  Miss.  60;    19  So.  197. 

San  Antonio,  Etc.  v.  Stewart,  94  Tex.  441 ;    61  S.  W.  386. 

Joyner  v.  Massey,  97  N.  Car.  148 ;    1  S.  E.  702. 

Warren  v.  Walker,  23  Me.  453. 


218  THE  LAW  OF  WAIVER 

either  express  or  implied,  is  a  consideration40,  and 
if  it  be  made  after  the  lapse  of  the  period  limited  by 
the  statute,  the  existence  of  the  debt  and  the  moral 
obligation  created  thereby  are  a  sufficient  considera- 
tion41. 

Sec.  218.  The  effects  of  a  waiver  of  the  statute 
of  limitations  can  in  no  sense  be  extended  to  a  per- 
manent removal  of  its  operation.  The  logical  result 
is  that  such  waiver  creates  a  new  period,  starting  the 
statute  afresh  and  extending  the  same  length  of  time 
as  originally  applying,  unless  the  agreement  is  for 
a  waiver  for  a  limited  time,  in  which  event  suit  must 
be  brought  within  a  reasonable  time  or  the  bar  may 
again  be  invoked42. 

2.  ACKNOWLEDGMENT  OF  DEBT:— Sec. 
219.  Whether  acknowledgment  of  the  debt  after 
lapse  of  the  statutory  period  will  waive  the  bar  of 
the  statute  depends  upon  the  character  of  the  ac- 
knowledgment, for  it  is  not  every  acknowledgment 
that  will  in  itself  be  held  a  waiver.  Thus,  the 
mere  acknowledgment  that  the  debt  is  unpaid  is  held 
by  most  courts  to  be  insufficient  to  amount  to  a 
waiver  of  the  statute43.  The  contrary,  however,  has 
been  held  under  statutory  provision44,  and  it  is  said 


40.  Benson  v.  Phlpps,  87  Tex.  578 ;    29  S.  W.  1061 ;    47  A.  S.  R.  128. 
Gay  v.  Hassom,  64  Vt.  495 ;    24  Atl.  715. 

Burton  v.  Stevens,  24  Vt.  131 ;    58  A.  D.  153. 

41.  Pittman  v.  Elder,  76  Ga.  371. 

Jordan  v.  Jordan,  85  Tenn.  563 ;    3  S.  W.  896. 

42.  Kellog  v.  Dickinson,  147  Mass.  432 ;    18  N.  E.  223. 
Trask  v.  Weeks,  81  Me.  325;    17  Atl.  162. 
Joyner  v.  Massey,  97  N.  Car.  148 ;    1  S.  E.  702. 
Wells,  Fargo  v.  Enrlght,  127  Cal.  669 ;    60  Pac.  439. 

43.  McLean  v.  Thorp,   4  Mo.   256. 

Prescott  v.  Vershire,  63  Vt.  5i? ;    22  Atl.  665. 
Levlstone  v.  Marigny,  13  La.  Ann.  353. 

44.  Stewart  v.  McParland,  84  la.  55 ;    50  N.  W.  221. 
Reymond  v.  Newcomb,  10  N.  Mex.  151;    61  Pac.  205. 


STATUTE  OF  LIMITATIONS  219 

that  an  unqualified  acknowledgment  of  an  indebted- 
ness is  sufficient  to  lift  the  bar  of  the  statute45 ;  and 
some  courts  have  gone  a  greater  distance  in  holding 
an  acknowledgment  of  a  debt  to  be  a  waiver  of  the 
right  to  invoke  the  protection  of  the  statute46. 

Sec.  220.  But  we  can  scarcely  reconcile  our 
views  to  the  proposition  that  a  mere  admission  of  in- 
debtedness should  be  sufficient  to  deprive  him  for 
whose  benefit  a  statute  has  been  made  of  its  force 
and  protection.  The  very  object  of  the  creation  of 
such  a  statute  was  to  create  a  bar  to  all  claims  not 
sued  on  within  a  certain  time,  and  to  say  that  by  a 
mere  acknowledgment  that  the  debt  has  not  been 
paid  the  effect  of  the  statute  is  to  be  held  waived  is, 
in  our  opinion,  going  farther  than  sound  reason  or  a 
proper  interpretation  of  the  intent  of  the  statute  will 
permit  the  proper  doctrine  should  be  that  the  ac- 
knowledgment, in  order  to  constitute  a  waiver  of  the 
statute,  must  indicate,  either  expressly  or  impliedly, 
a  recognition  by  the  debtor  of  a  present  indebted- 
ness and  an  intention  to  pay  it47.  Or,  as  it  has 
been  said,  an  acknowledgment  sufficient  to  remove 
the  bar  of  the  statute  must  contain  a  clear  and  un- 
equivocal acknowledgment  of  the  debt,  a  specifica- 
tion of  the  amount  of  it,  and  an  express  or  implied 
promise  to  pay  it48 ;  or,  again,  there  must  be  a  clear, 
distinct  and  unequivocal  promise  to  pay  as  distin- 


45.  Cole  v.  Putnam,  62  N.  H.  616. 

Gartrell  v.  Linn,  79  Ga.  701 ;    4  S.  B.  918. 
Krueger  v.  Krueger,  76  Tex.  178;    12  S.  W.  1004. 
Tost  v.  Grim,  116  Pa.  St.  527  ;    8  Atl.  925. 

46.  Gusty  v.  Dolan,  159  Mass.  245;    34  N.  E.  360;    38  A.  S.  R.  419. 

47.  Manchester  v.  Braedner,  107  N.  Y.  346;    14  N.  E.  405;    1  A.  S.  R. 

829. 

48.  Ward  v.  Jack,  172  Pa.  St.  416 ;    33  Atl.  577  ;    51  A.  S.  R.  744. 


320  THE  LAW  or  WAIYBB 

griished  from  a  promise  implied  from  an  acknowl- 
edgment of  the  justness  or  existence  thereof,  and 
a  mere  expression  of  an  intention  to  pay  the  debt 
is  insufficient49.  The  Supreme  Court  of  the  United 
States  has  from  an  early  day  held  to  the  principal 
that  an  acknowledgment  of  a  debt  must,  in  order 
to  be  held  a  waiver  of  the  statute,  be  something 
more  than  an  admission  consistent  with  the  impli- 
cation of  a  promise  to  pay.  It  must  be  such  as  to 
indicate  a  present  liability  and  a  willingness  to 
pay50. 

Sec.  221.  A  different  proposition  is  presented 
where  the  debtor  acknowledges  and  admits  that  the 
debt  is  a  present  and  subsisting  liability;  for  from 
such  an  acknowledgment  necessarily  arises  the  pre- 
sumption that  the  debtor  will  pay  his  obligations  and 
from  this  must  be  the  implication  of  a  promise  to 
pay ;  especially  if  the  admission  contain  nothing  neg- 
ativing an  intention  to  pay51.  But  such  an  admis- 


*».     Shockey  v.  Mills,  71  Ind.  288 ;    36  A.  R.  196. 

60.  Clementson  v.  Williams,  8  Cranch  72. 
Bell  v.  Morrison,  1  Pet.  352. 
Shepherd  v.  Thompson,  122  U.  S.  231. 
Bullion  Bank  v.  Hegler,  93   Fed.  890. 

To  the  same  effect,  see:    Ensign  v.  Batterson,  68  Conn.  298;    36 

Atl.  51. 

Taylor  v.  Poster,  132  Mass.  30. 
Switzer  v.  Noffsinger,  82  Va.   518. 
Shown  v.  Hawkins,  85  Tenn.  214;    2  S.  W.  34. 
Belles  v.  Belles,  12  N.  J.  L.  339. 
Drake  v.  Sigafoos,  39  Minn.  367  ;    40  N.  W.  257. 

61.  Lang  v.  Gage,  66  N.  H.  624;    32  Atl.  155. 

Tenn.  Br'g.  Co.  v.  Hendricks,  77  Miss.  491;    27  So.  526. 

Kirby  v.  Mills,  78  N.  Car.  124 ;    24  A.  R.  460. 

Gardenhire  v.  Rogers,  60  S.  W.  616   (Tenn.). 

Clark  v.  King,  54  Kans.  222 ;    38  S.  W.  281. 

Philips  v.  Peters,  21  Barb.  351  (N.  Y). 

Honn  v.  Pinnell,  61  111.  App.  137. 

Hunter  v.  Kittridge,  41  Vt:  359. 

Olvey  v.  Jackson,  106  Ind.  286 ;    4  N.  E.  149. 


STATUTE  OP  LIMITATIONS  221 

eion  must  iiot  be  confounded  with  an  acknowledg- 
ment of  an  original  indebtedness.  For  the  latter  it 
by  no  means  an  admission  of  a  binding  character. 

3.  NEW  PROMISE  TO  PAY:— Sec.  222.  The 
question  above  considered,  as  to  what  acknowledg- 
ment or  admission  will  be  sufficient  to  constitute  a 
waiver  of  the  statute  of  limitations  must,  in  fact, 
be  resolved  into  a  question  of  whether  under  the 
circumstances  or  form  of  the  acknowledgment  a  new 
promise  to  pay  arises.  For,  resolved  to  its  ultimate 
analysis,  a  waiver  of  the  statute  may  be  said  never 
to  occur  unless  there  is  either  express  or  implied  a 
new  promise  to  pay  the  debt  against  which  the  stat- 
ute may  be  sought  to  be  invoked.  "Where  there  is 
an  express  new  promise  to  pay  the  old  debt,  there 
can  be  no  question,  unless  under  the  statutory  regu- 
lation, that  the  effect  of  the  statute  is  waived  and 
it  will  be  started  afresh,  whether  the  new  promise  is 
made  before  or  after  the  original  indebtedness  has 
become  barred52. 

Sec.  223.  In  a  majority  of  the  states  statutory 
provision  has  been  made  to  the  effect  that  no  ac- 
knowledgment or  new  promise  shall  be  sufficient  to 
waive  the  bar  of  the  statute  of  limitations  unless  the 
same  shall  be  in  writing  and  signed  by  the  debtor  or 
under  his  authorization.  It  is  essential  that  all  of 
the  elements  of  a  complete  new  promise  appear  in 
the  writing,  although  no  special  form  is  necessary, 
and  it  will  be  sufficient  if  from  the  writing  a  liability 
of  the  debtor  to  pay  the  specified  debt  may  be  im- 


62.     Damon  v.  Leque,  17  Wash.  573  ;    50  Pac.  485 ;    61  A.  S.  R.  927. 
Malone  v.  Searight,  8  Lea  94    (Tenn.). 

See:    Warren  v.   Cleveland,   111  Tenn.  174;    76  S.  W.  910;    102 
A.  S.  R.  749,  and  splendid  note  thereto. 


222  THE  LAW  OF  WAIVEB 

plied53.  Thus,  it  has  been  held  that  letters  written 
by  the  debtor,  sufficient  in  other  respects,  are  suf- 
ficient in  form  to  amount  to  a  waiver  in  the  form  of 
a  new  promise54;  also,  giving  written  orders  on  a 
third  person55,  giving  checks56,  although  this  latter 
would  be  held  a  waiver  at  any  rate  on  account  of 
being  part  payment ;  and  giving  notes  with  security 
has  the  same  effect57.  The  courts  are  not  agreed  as 
to  the  giving  of  security  by  the  debtor  upon  an  in- 
debtedness barred  by  the  statute.  Some  courts  hold 
that  the  giving  of  security  does  not  revive  the  debt, 
if  barred,  nor  start  the  statute  anew  only  in  so  far 
as  the  security  will  discharge  the  debt58.  Others 
hold  that  the  giving  of  security  is  a  payment  pro 
tanto  and,  therefore,  a  waiver  of  the  statute59.  But 
others,  with  perfectly  good  reasoning,  hold  that  the 
giving  of  security  for  an  old  indebtedness  is  the  best 
evidence  that  the  debtor  recognizes  the  debt  as  a 
subsisting  obligation  and  a  manifestation  of  a  will- 
ingness to  pay60.  No  other  deduction  can  be  logic- 


M.     Richards  v.  Hayden,  8  Kans.  App.  816;  57  Pac.  978. 

Manchester  v.  Braedner,  107  N.  Y.  346;    14  N.  E.  405  ;    1  A.  S.  R. 

829. 
S4.     Burnett  v.  Hunger,  23  Tex.  Civ.  App.  278;    56  S.  \V.  10». 

Osment  v.  McElrath,  68  Cal.  466;    9  Pac.  731;    oS  A.  R.  17. 

Miller  v.  Beardsley,  81  la.  720;    45  N.  W.  756. 
K.     Manchester  v.  Braedner,  107  N.  Y.  346  ;    14  N.  E.  405  ;    1  A.  S.  R. 

829. 

§6.     McGinty  v.  Henderson,  41  La.  Ann.  382  ;    C  So.  658. 
67.     Blair  v.  Carpenter,  75  Mich.  167;    42  N.  W.  790. 
§8.     Shepherd  v.  Thompson,  122  U.  S.  231. 
S9.     Campbell  v.  Baldwin,  130  Mass.  199. 

Pracht  v.  McNee,  40  Kans.  i  ;    18  Pac.  925. 

Wolford  v.  Cook,  71  Minn.  77  ;    73  N.  W.  706. 

Creighton  v.  Vincent,  10  Oreg.  56. 

Smith  v.  Ryan,  66  N.  Y.  352  ;    23  A.  R.  60. 
CO.     Taylor  v.  Hunt,  118  N.  Car.  168  ;    24  S.  E.  359. 

Hamption  v.  France,  17  Ky.  L.  R.  980  ;    32  S.  W.  96». 

Osborne  v.  Heuer,  62  Minn.  507;    64  N.  W.  1151. 


STATUTE  OP  LIMITATIONS  223 

ally  drawn  from  the  act,  nor  could  a  more  concise 
illustration  of  an  implied  promise  foe  cited. 

A.  PAET  PAYMENT:— Sec.  224.  Part  pay- 
ment of  a  debt  barred  by  the  statute  of  limitations 
is  a  common  form  of  acknowledgment  of  an  indebt- 
edness sufficient  to  waive  the  statute  if  the  part  pay- 
ment be  made  under  circumstances  involving  an  ad- 
mission of  the  whole61.  But  there  must  be  an  ex- 
press or  implied  promise  to  pay  the  remainder  of 
the  debt.  For  if  at  the  time  of  the  part  payment 
the  debtor  declares  that  he  will  not  pay  the  balance, 
the  part  payment  is  insufficient  to  amount  to  a 
waiver62.  And  the  part  payment,  to  have  such  effect, 
must  be  voluntary ;  for  it  is  said  that  the  entire  ef- 
ficiency of  a  payment  to  avert  the  effect  of  the  stat- 
ute as  a  bar  rests  in  the  conscious  and  voluntary 
act  of  the  debtor,  explainable  only  as  a  recognition 
and  confession  of  an  existing  liability63.  The  pay- 
ment of  interest  is  equally  efficacious  to  toll  the  stat- 
ute or  to  start  it  anew,  and  amounts  to  an  acknowl- 
edgment of  the  principal  debt  from  which  a  new 
promise  to  pay  will  be  implied64. 


«1.     Cucullu  v.  Hernandez,  103  U.  S.  105. 

Hale  v.  Morse,  49  Conn.  481. 

Engmann  v.  Immel,  59  Wis.  249  ;    18  N.  W.  182. 

Buxton  v.  Edwards,  134  Mass.  567. 

Walker  v.  Wait,  50  Vt.  668. 

Glick  v.  Crist,  37  Oh.  St.  388. 

Kuhn  v.  McKay,  7  Wyo.  42  ;  49  Pac.  473 ;  51  Pac.   205. 
•2.     Lester  v.  Thompson.   91   Mich.   245;   51   N.   W.   893. 
•3.     19  Am.  &  Eng.  Enc.  L.  326,  citing: 

Lang  v.  Gage,  65  N.  H.  173 ;    18  Atl.  796. 

See:    Thomas  v.  Brewer,  55  la.  227;    7  N.  W.  571. 
«4.     Topeka  Capital  v.  Merriam,  60  Kans.  397  ;  56  Pac.  757. 

Bennett  v.  Baird,  67  111.  App.  442. 

Blair  v.  Carpenter,  75  Mich.  167;    42  N.  W.  790. 

Dickson  v.  Gourdin,  26  S.  Car.  391;    2  S.  E.  303. 


224  THE  LAW  OF  WAIVER 

In  some  jurisdictions  where  statutory  provis- 
ions require  an  acknowledgment  to  be  in  writing  in 
order  to  affect  the  limitation,  it  is  held  that  part  pay- 
ment is  not  a  waiver  as  it  is  not  a  compliance  with 
the  statute65,  although  in  others,  even  where  such 
provision  exists,  the  part  payment  is  given  effect 
as  a  waiver06. 

4.     FIAULURiE  TO  PLEAD: 

A.  IN  CIVIL  ACTIONS:— Sec.  225.  Where 
a  defendant  is  sued  upon  an  indebtedness  against 
which  the  statute  of  limitations  has  run  the  stat- 
ute is  an  absolute  bar  to  the  action  by  way  of  defense 
and  is  ground  for  the  discharge  of  the  defendant. 
But  the  statute  is  an  affirmative  defense,  and  the 
right  to  take  advantage  of  it  is  a  personal  one  be- 
longing solely  to  the  defendant,  which  he  may  take 
advantage  of  or  waive  as  he  may  desire.  When  ac- 
tion is  brought  on  a  debt  so  barred,  the  defendant 
must  set  up  the  statute  and  his  right  to  rely  upon  it 
in  some  appropriate  pleading,  or  his  privilege  will 
be  waived  and  a  judgment  against  him  for  the  debt 
so  barred  will  be  binding67 ;  for  it  is  said  that ' l  The 


65.  Hale  v.  Wilson,  70  la.  311 ;    30  N.  W.  739. 
Perry  v.  Ellis,  62  Miss.  718. 

Wilcox  v.  Williams,  5  Nev.  206. 

66.  Kirk  v.  Williams,  24  Fed.  448. 

Kelly  v.  Leachman,  3  Idaho  629  ;    33  Pac.  46. 

Brude  v.  Treutman,  16  Ind.  App.   512;   44  N.  B.  932. 

67.  Christie  v.  Bridgman,  51  N.  J.  Eq.  331;    25  Atl.  930;    80  Atl.  429. 
Orr  v.  Rode,  101  Mo.  387;    18  S.  W.  1066. 

Jennings  v,  Rickard,  10  Colo.  395  ;    15  Pac.  677. 
Nlcodemus  v.  Young,  90  la.  423 ;    57  N.  W.  906. 
Small  v.  Cohen,  102  Ga.  248;    29  S.  E.  430. 
Davis  v.  Davis,  20  Oreg.  78 ;   25  Pac.  140. 
Tex.,  Etc.,  Ry.  v.  Comstock,  83  Tex.  537  ;  18  S.  W.  946. 
Lockhart  v.  Fessenich,  58  Wis.  588  ;    17  N.  W.  302. 
Barstow  v.  McLachlan,  99  111.  641. 

And  see  numerous   cases   from  practically  every  state  cited  In 
13  Am.  &  Eng.  Enc.  P.  &  P.  181. 


STATUTE  OP  LIMITATIONS  226 

Statute  of  Limitations,  unless  pleaded,  like  the 
prayers  of  the  wicked,  availeth  not"68.  In  some 
states  it  is  held  that  if  it  is  apparent  on  the  face  of 
the  complaint  that  the  debt  is  barred  by  the  statute, 
an  objection  to  the  evidence  will  be  effective,  but  if  it 
does  not  appear  on  the  face  of  the  complaint,  it  must 
be  specially  pleaded69.  But  the  general  rule  requires 
the  question  in  either  event  to  be  presented  through 
the  pleadings70 ;  it  cannot  be  taken  advantage  of  un- 
der the  general  issue  or  a  general  denial71,  nor  for 
the  first  time  at  the  trial72,  nor  on  arrest  of  judg- 
ment73, nor  at  any  time  after  judgment74. 

B.  IN  CRIMINAL  OASES:— Sec.  226.  A 
plea  of  not  guilty  in  a  criminal  action  puts  every- 
thing in  issue75.  Therefore,  the  rule  obtaining  in 
civil  actions  that  the  statute  of  limitations,  to  be 
available  as  a  defense,  must  be  specially  pleaded, 
does  not  apply.  And  while  the  defendant,  if  the  in- 
dictment shows  the  prosecution  to  be  barred  by  lim- 
itation, may  raise  the  question  of  the  statute  by 


68.  Per  Judge  Neill  in  P.  &  O.  Tex.  Ry.  v.  Crews,  139  S.  W.  1049, 

Tex.  Civ.  App. ;    mentioned  in  West  Pub.  Co.'s  "Docket,"  De- 
cember, 1911,  p.  596. 

69.  Mitchell  v.  Ripley,  5  Kans.  App.  818 ;    49  Pac.  153. 
Zane  v.  Zane,  5  Kans.  134. 

70.  State  v.  Spencer,  79  Mo.  314. 
Thompson  v.  Parker,  68  Ala.  3oo. 

Whitworth  v.  Pelton,  81  Mich.  98;    45  N.  W.  500. 

Vore  v.  Woodford,  29  Oh.  St.  245. 
tl.     Retzer  v.  Wood,  109  U.  S.  185. 

Bell  v.  Clark,  30  Mo.  App.  224. 

Williams  v.  Barnett,  52  Tex.  130. 

Bullett  v.  Stewart,  3  B.  Mon.  115   (Ky.). 
T2.     Frantz  v.  Company,  5  Idaho  71;    46  Pac.  1028. 
T8.     Cooksey  v.  Ry.,  17  Mo.  App.  132. 

Sawyer  v.  Boston,  144  Mass.  470;    11  N.  E.  711. 

Allen  v.  Word,  6  Humph.  284  (Tenn.). 
74.     Clinton  v.  Eddy,  54  Barb.  54. 
76.     Thompson  v.  State,  54  Miss.  740. 


226  THE  LAW  or  WAIVES 

special  plea,  advantage  may  also  be  taken  of  this 
defense  under  the  general  issue76.  But  if  the  bar 
of  the  statute  be  not  taken  advantage  of  at  the  trial 
before  verdict,  it  will  be  waived  and  the  sentence 
cannot  'be  called  in  question  on  that  ground  on 
habeas  corpus  or  on  appeal77. 


W.     U.  S.  v.  Cook,  17  Wall.  168   (TJ.  S.). 

State  v.  Gill.  33  Ark.  129. 

Hatwood  v.  State,  18  Ind.  492. 

Com.  v.  Ruffner,  28  Pa.  St.  260. 
Tf.     Johnson  v.  U.  S.,  3  McClean  89   (U.  B.). 


COBPORATIONS  227 


CHAPTER  11. 

CORPORATIONS. 

Section 

1.    CONDITIONS    AND    IRREGULARITIES    IN    SUB- 
SCRIPTIONS— 

A.  Conditional   Subscriptions — 

(1)  In  general 227 

(2)  That  all  stock  be  subscribed 229 

(3)  Miscellaneous  conditions 232 

B.  Irregularities  In  Subscriptions — 

(1)  In  general 233 

(2)  Fraud  and  misrepresentation 237 

1.     BY-LAWS   AND   CORPORATE   MEETINGS — 

A.  By-Laws 235 

B.  Corporate  Meetings 241 

S.     ASSESSMENTS  AND  FORFEITURE  OF  SH AIRES — 

A.  Waiver  As  Applied  To  Assessments 245 

B.  Forfeiture  Of  Shares 246 

4.    TRANSFER  OF  STOCK,  AND  LIEN  ON  SHARES — 

A.  Transfer  Of  Stock 249 

B.  Waiver  of  Lien  On  Shares 2'53 

*,     RIGHT  OF  STATE  TO  CANCEL  CHARTER.  . 268 


1.     CONDITIONS    AND    IRREGULARITIES    IN    SUB- 
SCRIPTIONS: 

A.     Conditional  Subscriptions — 

( 1 )  IN  GENERAL :— Sec.  227.  On  the  organ- 
ization of  a  corporation  a  subscriber  may  agree  to 
take  shares  therein  upon  conditions  to  be  performed 
by  the  corporation.  And  where  there  are  conditions, 
the  agreement  does  not  become  effective  until  they 
are  performed.  When  they  are  conditions  prece- 
dent, upon  failure  to  comply  therewith,  or,  rather, 


228  THE  LAW  OF  WAIVER 

until  compliance  therewith,  no  liability  attaches  to 
the  subscriber.  In  fact  the  subscription  is  but  a  pro- 
posal to  take  a  number  of  shares  thereafter  if  cer- 
tain facts  exist,  and  is  not  an  absolute  promise  to 
pay  therefor.  The  corporation  cannot  levy  an  as- 
sessment upon  such  shares  before  the  conditions  are 
removed.  It  has  been  said  that  a  conditional  sub- 
scription involves  two  contracts,  one  on  the  part  of 
the  corporation  to  do  some  specified  act,  and  the 
other  on  the  part  of  the  subscriber  to  pay  for  his 
shares  when  such  act  is  performed ;  and  that  the  con- 
ditional subscription  is  a  continuing  offer  which  be- 
comes effective  only  upon  acceptance  by  the  corpor- 
ation, which  is  evidenced  by  the  performance.  But 
after  such  acceptance  the  offer  cannot  be  revoked. 

Sec.  228.  But  performance  of  the  condition  of 
a  subscription  for  stock  is  not  always  requisite  to 
render  the  contract  enforceable.  The  subscriber  is 
not  bound  to  insist  upon  it.  He  has  the  right  to  do 
so  but  may  waive  the  right,  or,  in  other  words,  may 
forego  its  benefits.  But  in  order  that  a  valid  waiver 
of  performance  of  conditions  may  occur,  the  sub- 
scriber must  have  knowledge  of  his  rights  and  must 
forego  them  voluntarily,  or  the  circumstances  sur- 
rounding his  dealings  and  his  conduct  in  the  prem- 
ises must  be  such  that  an  intent  not  to  insist  upon 
the  rights  may  be  inferred,  as  a  waiver  may  be  either 
express  or  implied ;  and  even  silence  may  constitute 
a  waiver  if  a  duty  rests  upon  the  subscriber  to  speak, 
or  if  his  silence  misleads  others  to  their  prejudice. 

(2)  THAT  ALL  STOCK  BE  SUBSCRIBED:— 
Sec.  229.  A  common  condition  inserted  in  the  agree- 
ment of  subscription  upon  the  organization  of  a  cor- 
poration is  that  there  shall  be  a  certain  number  of 


CORPORATIONS  229 

shares  of  the  capital  stock  and  that  a  designated 
sum  shall  be  paid  for  each  share.  And  in  other  in- 
stances statutory  provisions  require  a  definite  num- 
ber of  shares  to  be  subscribed  and  a  certain  part  of 
the  capital  stock  to  be  paid  in.  In  either  event,  the 
stipulation  or  requirement  must  be  fulfilled  or  the 
subscription  does  not  become  effectual  so  that  pay- 
ment thereof  can  be  enforced. 

Sec.  230.  But  these  provisions  or  conditions 
are  solely  for  the  benefit  of  the  subscriber  and  he 
has  the  right  to  take  advantage  of  them  or  not  as  he 
may  desire.  He  may  rely  upon  them  as  a  defense 
in  an  action  upon  the  subscription,  or  he  may  so  de- 
clare or  conduct  himself  as  to  preclude  such  defense. 
In  other  words,  he  may  waive  the  performance  of 
such  conditions  and  in  such  event  will  be  held  to  pay- 
ment of  the  amount  subscribed78.  A  variety  of  facts 
and  circumstances  have  been  held  to  amount  to  a 
waiver  of  the  conditions  under  consideration.  Thus, 
if  a  subscriber  to  stock  in  a  corporation  subscribed 
prior  to  incorporation,  he  waives  the  defense  that 
the  capital  stock  of  the  corporation  has  not  been  sub- 
scribed as  provided  for  in  his  contract  by  acquiesc- 
ing in  the  mode  of  incorporation  with  knowledge  of 
all  the  facts79.  Or,  if  he  know  that  the  whole  amount 
of  the  capital  stock  has  not  been  subscribed,  yet  par- 
ticipate in  a  corporate  meeting,  the  condition  is 
waived  and  the  subscription  rendered  absolute80. 


78.  MacFarland  v.  West.  Assoc.,  56  Neb.  277;    76  N.  W.   584. 

79.  Cal.  Hotel  Co.  v.  Callender,  94  Cal.  120;    29  Pac.  859;    28  A.  S. 

R.  99,  citing: 

Cook  on  Stocks  &  Stockholders,   Sees.   181-198. 
Taylor,  Private  Corporations,  Sec.  519. 
N.  H.  Ry.  Co.  v.  Johnson,  30  N.  H.  390  ;    64  A.  D.   300. 

80.  Inter.  Assoc.  v.  Walker,   97  Mich.  159;    56  N.  W.   344. 


230  THE  LAW  OF  WAIVER 

And  the  same  effect  results  where  he  acts  as  a  di- 
rector of  the  corporation  or  as  a  member  of  its  com- 
mittees81; and  likewise  if  he  attend  meetings,  vote 
for  expenditures,  or  for  making  contracts,  and  do 
other  acts  which  could  be  consistent  only  with  an  in- 
tention to  proceed  with  his  subscription  and  shares 
as  if  all  the  conditions  had  been  complied  with,  a 
waiver  will  be  imputed  to  him82.  And  it  is  the  same 
where  he  pays  calls  on  shares88.  The  assisting  in 
prosecuting  the  enterprises  for  which  the  corpora- 
tion was  formed  and  in  the  incurring  of  liabilities, 
knowing  that  the  required  amount  has  not  been  sub- 
scribed, is  a  waiver  by  the  subscriber  of  the  condi- 
tion84. So,  the  making  of  payments,  promising  to 
pay,  giving  his  note  or  other  obligation  as  payment 
will  have  the  same  result85.  And  if,  at  the  time  of 
the  subscription,  the  corporation  has  already  com- 
menced business,  the  subscriber  will  be  held  to  have 
waived  the  conditions  as  to  all  stock's  being  taken 
if  he  knew  at  the  time  that  it  had  not  been86.  In 
general  it  has  been  said  that  any  acts  done  by  the 
subscriber,  either  as  a  corporator  or  as  a  director, 
which  evince  a  willingness  on  his  part  that  the  cor- 


\ 

81.  Auburn  Assoc.  v.  Hill,  32  Pac.  587   (Cal.). 
Richfield  Co.  v.  Reynolds,    46   Conn.    376. 

82.  Hager  v.  Cleveland,  36  Md.  476. 

Cabot,  etc.  Bridge  v.  Chapin,   6  Gush.  53. 
See:    N.  H.  Ry.  Co.  «.  Johnson,  30  N.  H.  390;    64  A.  D.  300. 
Lane  v.  Bralnerd,  30  Conn.  565. 

Morrow  v.  Nashville  Co.,   87  Tenn.  262  ;    10  S.  W.   495 ;    3  L.  R. 
A.   37. 

83.  Cal.  Hotel  Co.  v.  Callender,  94  Cal.  120;    29  Pac.  859;    28  A.  S. 

R.   99. 

84.  Hutchlns  v.   Smith,    46   Barb.    235. 
Reformed  Church  v.  Brown,  17  How.  Pr.  287. 

85.  Chamberlain  v.  Painesvllle,  15  Oh.  St.  225. 

86.  Musgrave  v.  Morrison,  54  Md.  181. 


CORPORATIONS  231 

poration  should  enter  upon  its  business  with  no 
more  stock  than  already  subscribed,  will  amount  to 
a  waiver  of  the  condition  that  payment  of  his  sub- 
scription cannot  be  required  until  the  whole  capital 
stock  is  subscribed87. 

Sec.  231.  It  has  been  held,  however,  that  pay- 
ment of  part  of  a  subscription  is  not  a  waiver  of 
performance  of  this  condition88;  but  this  conclusion 
cannot  be  reasonably  maintained  if  at  the  time  of 
such  payment  the  subscriber  knows  how  much  of  the 
stock  has  been  taken89.  And  it  has  been  said  that  if 
a  subscriber  consent  to  and  waive  notice  of  a  stock- 
holders' meetings,  and  vote  at  special  meetings,  such 
conduct  does  not  amount  to  a  waiver  of  compliance 
with  the  condition,  if  he  is  ignorant  of  existing 
facts90. 

(3)  MISCELLANEOUS  CONDITIONS:— Sec. 
232.  The  charter  of  a  corporation  required  that  at 
the  time  of  subscription  the  subscriber  should  pay 
a  certain  sum  on  each  share.  It  was  held  that  he 


87.  1  Thompson,   Corporations,  Art.   1242,  citing: 

Masonic  Temple  As.  v.  Channell,  43  Minn.  353  ;    45  N.  W.  716. 
See:    Detroit  Club  v.  Fitzgerald,  109  Mich.  670;    67  N.  W.  899. 

88.  Gettysburg  Bank  v.  Brown,  95  Md.  367;    62  Atl.  975;    93  A.  S.  R. 

339. 
Sohloss  v.  Montgomery   Co.,    87  Ala.   411;    6   So.   360;    13   A.   S. 

R.  51. 

Pittsburgh  Ry.  v.  Stewart,  41  Pa.  St.  54. 
But,  see:    Klein  v.  Alton,  etc.  Ry.,  13  111.  514. 

89.  Johnson  v.  Schar,  9  S.  Dak.  536  ;    70  N.  W.   838. 

90.  Fairview  Co.  v.  Spillman,  23  Oreg.  587 ;  32  Pac.  688. 

But  it  is  otherwise  if,  with  knowledge  of  the  facts,  he  act* 
as  an  officer  of  the  corporation,  pays  the  whole  subscription, 
or  gives  an  absolute  promissory  note  therefor ;  See : 

Lane   v.    Brainerd,    30    Conn.    565. 

Parks  v.  Evansville  Ry.,  23  Ind.  567. 

Slipher  v.  Earhart,   83   Ind.    173. 

Chamberlain  v.  Painesville  Ry.,  15  Oh.  St.  226. 


232  THE  LAW  OF  WAIVER 

could  not  take  advantage  of  the  failure  to  require 
the  actual  payment  of  his  part  if  he  subsequently 
made  payment  thereon  before  any  calls  for  install- 
ments were  made91.  And  the  same  result  was  held 
against  him  where  he  paid  a  judgment  rendered  for 
the  amount  of  the  required  payment92.  And  it  is  a 
rule  generally  applicable  that  any  condition  attached 
to  a  subscription  for  shares  which  is  precedent  to  a 
right  of  the  corporation  to  require  payment  for  such 
shares  is  a  defense  to  an  action  for  the  recovery 
thereof  prior  to  performance  of  such  condition.  But, 
whatever  the  condition,  it  may  be  waived  by  him  who 
is  entitled  to  insist  upon  it ;  and  any  declaration  or 
conduct  will  amount  to  a  waiver  if  it  be  inconsistent 
with  a  reliance  upon  the  condition.  And  when  the 
subscriber  so  conducts  himself  or  declares  as  to 
waive  performance  of  the  conditions  upon  which  his 
subscription  was  made,  he  will  be  compelled  to  pay 
for  the  agreed  shares  the  same  as  if  no  condition  had 
ever  been  attached. 

B.     IRREGULARITIES  IN  SUBSCRIPTIONS — 

(1)  IN  GENERAL:— Sec.  233.  Frequently 
cases  arise  of  irregularities  in  the  issuance  of  shares 
of  stock  to  a  subscriber  which,  in  the  absence  of  any 
further  facts  of  excuse  or  of  an  exonerating  nature, 
are  insufficient  to  render  the  subscription  nugatory 
and  to  release  the  subscriber  from  liability  therefor ; 
or  it  may  be  that  no  subscription  for  shares  has  been 


91.     Harrington  v.  Miss.  Co.,  32  Miss.  370. 
•2.     Hall  v.  Selma  Ry.  Co.,    6  Ala.   741. 

See:    Pittsburg  Ry.  Co.  v.  Applegate,  21  W.  Va.  172. 

Klein  v.  Alton  Ry.  Co.,  13  111.  514. 

Blair   v.   Rutherford,    31    Tex.    465. 

Beach  v.  Smith,   28  Barb.  254. 


CORPORATIONS  233 

made  at  all,  and  yet  an  attempt  made  to  hold  a  party 
to  the  duties  and  liabilities  of  a  regular  shareholder. 
In  either  event  the  one  upon  whom  liability  is  sought 
to  be  fixed  has  the  right  to  rely  upon  the  irregularity 
or  the  absence  of  any  formal  subscription  to  release 
him  from  any  ostensible  liability. 

Sec.  234.  But  a  party  cannot  rely  upon  such 
right  of  exemption  from  the  responsibilities  of  a 
shareholder  and  at  the  same  time  occupy  a  position 
with  reference  to  the  corporation  or  so  conduct  him- 
self as  to  mislead  others  into  •  an  honest  belief  that 
he  is  regularly  a  shareholder.  Such  position  or  con- 
duct will  have  the  effect  of  waiving  any  irregulari- 
ties as  to  the  subscription,  and  will  place  the  burdens 
as  well  as  the  rights  squarely  upon  his  shoulders. 

Sec.  235.  Thus,  a  subscription  should  be  in 
writing,  but  the  fact  that  it  is  not  may  be  waived  by 
conduct  fairly  inducing  the  belief  that  it  is  regular93. 
The  serving  as  a  director  in  the  corporation  is  such 
conduct  as  will  produce  this  result94.  And  where  the 
rights  of  creditors  are  concerned,  this  is  especially 
true,  for  as  between  shareholders  in  the  same  con- 
cern, each  is  presumed  to  know  the  standing  of  the 
others  and  the  methods  by  which  they  came  into  the 
corporation,  but  strangers  to  the  concern,  or  those 
who  deal  with  it  other  than  as  members,  are  entitled 
to  rely  upon  the  conduct  of  a  party  or  his  ostensible 
relations  with  the  corporation,  or,  in  other  words, 
upon  appearances  produced  by  his  own  conduct  or 


93.     Kans.  City  Hotel  Co.  v.  Hunt,  67  Mo.  126. 

Upton  v.  Tribilicock,  91  U.  S.  45. 

Phoenix  Co.  v.  Badger,  67  N.  T.  294;    6  Hun  293. 
•4.     Lane  v.  Brainerd,  30  Conn.  565. 


234  THE  LAW  or  WAIVER 

acquiescence,  as  to  whether  he  is  a  shareholder  or 
not;  and  if  his  conduct  is  misleading,  even  though 
his  subscription  be  irregular,  the  irregularity  will 
be  held  waived95.  And  more  especially  is  it  true  that 
serving  as  a  director  in  a  corporation  is  a  waiver  of 
irregularities  in  subscriptions  if  the  by-laws  require 
that  only  shareholders  may  be  directors;  and  the 
same  is  true  if  he  holds  any  other  office  in  the  cor- 
poration96. 

Sec.  236.  Where  the  charter  required  the  first 
installment  of  stock  subscribed  for  to  be  paid  at  the 
time  of  subscription,  it  was  held  that  by  subsequent- 
ly acting  in  the  organization  of  the  company  a  sub- 
scriber waived  the  irregularity  that  the  installment 
was  paid  by  note  instead  of  in  cash  as  required  by 
the  charter97.  So,  failure  to  make  a  required  cash 
deposit  is  held  waived  by  an  acceptance  of  shares  of 
stock  and  a  subsequent  sale  or  transfer  of  them98; 
for  such  is  an  affirmance  of  the  subscription  contract 
rather  than  a  disavowal  of  it.  It  will  thus  be  seen 
from  an  examination  of  the  cases  that  any  act  of  the 
subscriber  will  be  sufficient  to  waive  an  irregularity 
in  his  subscription  if  it  evidence  an  intention  on  his 
part  to  treat  the  contract  as  binding,  or  at  least  show 
his  willingness  to  abide  by  it  with  all  the  duties  and 


85.     Ruggles  v.  Brock,  6  Hun  164    (N.  T.). 
Rutz  v.  Esler  Mfg.  Co.,  3  111.  App.  88. 

96.  Haynes  v.  Brown,  36  N.  H.  645. 
Convith  v.   Culver,    69   111.    502. 
Young  v.  Vough,  23  N.  J.  Eq.  325. 
Hays  v.  Pittsburgh  Ry.,  38  Pa.  St.  81. 

97.  Greenville    Ry.    v.    Woodsldes,    5    Rich.    Law    (S.    C.)     145;     Si 

A.  D.  708. 

98.  Everhart  v.  Westchester  Ry.,  28  Pa.  St.  339. 


CORPORATIONS  236 

liabilities  it  imposes".  Therefore,  such  waiver  is 
inferred  where  the  subscriber  pays  for  one  of  the 
shares  irregularly  issued100,  or  pays  calls  on  all  his 
shares1,  receives  dividends2,  attends  and  votes, 
either  in  person  or  by  proxy,  at  corporate  meetings3, 
and  accepts  and  holds  certificates  of  stock  issued 
pursuant  to  such  subscriptions4.  And  the  same  re- 
sult follows  where  he  helps  to  frame  the  by-laws 
under  which  assessments  are  levied5.  And  it  was 
held  that  by  voting  for  managers  the  subscriber 
waived  an  omission  of  the  payment  of  five  dollars 
per  share  at  the  time  of  subscription,  which  payment 
•was  required  by  the  act  of  incorporation6. 

(2)  FRAUD  AND  MISEEPEESENTA- 
TION:— Sec.  237.  The  effect  of  fraud  or  mis- 
representation practiced  upon  a  subscriber  for 
shares  in  a  corporation  is  the  same  as  that  in- 
ducing any  other  contract.  It  renders  the  contract 
not  void  but  voidable;  and  until  it  is  rescinded  by 
the  subscriber  in  some  appropriate  manner  it  re- 
mains binding  upon  him.  Not  only  this,  he  must  be 


89.     Rice  v.  Rock  Island  Co.,  21  111.  93. 
City  Bank  v.  Bartlett,  71  Ga.  797. 
McCully  v.   Pittsburgh  Ry.,   32   Pa.   St.  25. 
Chaffln  v.  Cummings,  37  Me.  76. 
Chubb  v.  Upton.  95  U.  S.  665. 
Hunt  v.  Ka.ua.  Co.,  11  Kans.  412. 
Meadow  v.  Gray,  30  Me.  547. 
100.     Bell's  Appeal,   115   Pa.   St.   88;    8  Atl.   177. 

1.  Inter-Mountain  Co.  v.  Jack,   5  Mont.   568  ;     6  Pac.   20. 
Maltby  v.  Ry.   Co.,   16  Md.   422. 

2.  Duffleld  v.  Barnum  Co.,  64  Mich.  293  ;    31  N.  W.  31«. 
8.     Rockville  Co.  v.  Van  Ness,  2  Cranch  C.  C.  449. 

Buffalo  Ry.  Co.  v.  Gifford,  87  N.  Y.  294. 
4.     Clarke  v.   Continental  Co.,   57   Ind.   135. 

McLouKhHn  v.  Detroit  Co.,  8  Mich.  100. 
6.     Williamette  Fr't'g.  Co.  v.  Stannus,  4  Oreg.  261. 
6.     Clark  v.  Navigation  Co.,  10  Watts.  364    (Penn.). 


236  THE  LAW  OF  WAIVER 

diligent  in  discovering  the  fraud,  and  must  there- 
upon act  promptly  in  repudiating  the  subscription, 
or  by  his  acquiescence  he  will  'be  held  to  have  elected 
to  ratify  the  contract  or  to  have  waived  the  fraud  or 
misrepresentation,  and  thereupon  he  will  be  bound 
as  if  the  contract  had  never  been  tainted. 

Sec.  238.  In  the  subject  under  consideration 
any  act  of  ratification  of  the  contract  of  subscription 
is  the  same  thing  as  a  waiver  of  fraud  or  misrepre- 
sentation in  its  inducement.  And  if  the  subscriber, 
with  full  knowledge  of  the  matter,  act  in  a  manner 
inconsistent  with  an  intention  to  disaffirm  the  con- 
tract, he  will  thereafter  be  precluded  from  escaping 
his  obligations  thereunder,  and  must  abide  by  its 
terms7.  Thus,  if  he  act  as  a  shareholder  after  dis- 
covering the  fraud8,  he  will  not  be  heard  to  question 
the  binding  effect  of  the  contract;  nor  will  he  if  he 
interpose  no  objections  while  the  corporation  is  be- 
ing organized9 ;  nor  where  he  pays  assessments,  acts 
as  an  officer,  votes  for  expenditures,  accepts  divi- 
dends, or  does  any  other  act  recognizing  the  continu- 
ing validity  of  the  contract10,  such  as  participating 
in  a  meeting  of  stockholders,  selling  part  of  his 
shares,  or  authorizing  his  broker  to  sell  them11. 


7.     Berthold  v.  Goldsmith,  24  How.  536  (U.  S.). 

Winship  v.  Bank  of  U.  S.,  5  Pet.  562  (U.  S.). 
3.     City  Bank  v.  Bartlett,   71  Ga.   797. 
t.     Beck  v.  Henderson,  76  Ga.  360. 
10.     Hays  v.  Pittsburgh  Ry.,  38  Pa.  St.  81. 

Frost  v.  Walker,  60  Me.  468. 

Miss.  Ry.  Co.  «.  Harris,  36  Miss.   17. 

Phila.  Ry.  Co.  v.  Cowell,  28  Pa.  St.  329 ;    70  A.  D.  128. 

Schaeffer  v.  Mo.  Home  Ins.  Co.,  46  Mo.   248. 

Chubb  v.  Upton,  95  U.  S.  667. 

City  Bank  v.  Bartlett,  71  Ga.  76. 
11.     Chaff  in  V.  Cummings,  37  Me.  76. 


COBPOKATIONS  237 

2.     BY-LAWS  AND  CORPORATE  MEETINGS: 

A.  BY-LAWS :— Sec.  239.  A  by-law  is  a  rnle 
pf  conduct  adopted  for  the  regulation  of  the  internal 
affairs  of  a  corporation ;  in  other  words,  it  is  a  pri- 
yate  statute  or  law  by  which  the  shareholders  have 
agreed  to  be  governed.  But  it  does  not  necessarily 
follow  that  an  act  done  contrary  to  the  by-laws  is 
void.  The  by-laws  may  be  waived  by  the  assent  of 
the  shareholders12.  But  it  has  been  said  that  the 
officers  of  a  mutual  company  have  no  authority  to 
waive  by-laws  adopted  by  the  members  unless  power 
to  do  so  has  been  expressly  given  them,  as  the  by- 
laws are,  in  effect,  a  contract  among  the  members1*. 
But,  on  the  contrary,  it  has  been  held  that  mutual 
insurance  companies  have  power  to  waive  provisions 
of  their  by-laws  which  have  been  introduced  for 
their  benefit  and  protection14.  And  it  has  been  said 
that  a  by-law  is  not  a  limitation  and  restriction  of 
the  power  which  is  lodged  by  the  charter  of  a  cor- 
poration in  the  board  of  directors,  and  can  have  no 
Mgher  effect  in  this  respect  than  instructions  or  a 
general  regulation  adopted  by  the  directors  them- 
selves as  a  convenient  guide  as  in  ordinary  cases15. 

Sec.   240.     It  will  be   seen  that   questions   of 
Waivers  of  by-laws  occur  more  frequently  in  in- 


12.  Supreme  Tent  v.  Volkert,  25  Ind.  App.  627;    57  N.  E.  201. 
Wiberg  v.  Minn.  Etc.  Co.,  73  Minn.  297  ;    76  N.  W.  37. 
Underbill  v.  Santa  Barbara  Co.,  93  Cal.  300 ;    28  Pac.  104». 
Currier  v.  Continental  Co.,  53  N.  H.  538. 

13.  Evans  v.  Tri-Mountain  Co.,  9  Allen  329   (Mass.). 
Behler  v.  German  Ins.  Co.,  68  lad.  347. 
Westchester  Co.   v.  Earle,   33   Mich.   143. 

14.  Union  Mut.  Co.  v.  Keyser,   32  N.  H.  313;    64  A.  D.  S75,  citing: 
Angell  on  Insurance,   Sec.   242. 

Heath  v.  Franklin  Ins.  Co.,  1  Gush.  257   (Mass.). 

15.  Campbell  v.  Merchants  Co.,  37  N.  H.  35 ;    72  A.  D.  224. 


23S  THE  LAW  OF  WAIVER 

surance  cases  than  in  any  other.  And  in  such  cases 
the  general  rule  is  that  as  between  the  insurer  and 
the  insured  a  by-law  is  for  the  benefit  of  the  former 
and  may  be  waived  by  it;  and  any  conduct  incon- 
sistent with  a  reliance  upon  it  may  amount  to  such 
waiver.  Thus,  where  certain  insurance  was  prohib- 
ited by  the  by-laws  of  a  mutual  insurance  company, 
the  issuance  of  such  a  policy  was  held  a  waiver  of 
the  by-laws16;  likewise,  where  there  was  an  accept- 
ance of  payment  in  a  manner  different  from  that 
provided  for17;  and,  again,  where  the  company 
failed  to  furnish  proper  blanks  for  proofs  of  death 
upon  receipt  of  notice  thereof,  the  requirement  of 
proof  was  thereby  waived18.  And  an  insurer  waives 
the  benefit  of  a  by-law  providing  for  the  authoriz- 
ing and  commissioning  of  an  agent  if  it  directs  the 
agent  to  deliver  a  policy  and  receive  the  premium19. 
The  policy  is  not  void  even  though  it  may  have  been 
issued  contrary  to  a  by-law ;  for  the  very  fact  of  its 
having  been  issued  in  violation  of  such  by-law  is  a 
waiver  of  it20. 

B.  COBPORATE  MEETINGS :— Sec.  241. 
The  by-laws  of  a  corporation  provide  the  manner  in 
which  its  members  or  directors  shall  be  assembled 
for  the  transaction  of  corporate  business ;  and  under 
such  provision  the  assemblage  must  be  in  the  man- 
ner designated.  It  matters  not  that  a  majority  were 


16.     Welling  v.  Eastern  Assoc.,  56  S.  Car.  280;  34  S.  E.  40». 

17.  National  Lodge  v.  Jung,  65  111.  App.  318. 

18.  Order  Friends  v.  Austerlltz,  75  111.  App.  74. 

18.     Susquehana  Co.  v.   Elklns,   124  Pa.   St.   484;     17  Atl.   24;    10  A. 

S.  R.  608. 
St.     Campbell  v.  Merchants  Co.,  37  N.  H.  35;    72  A.  D.  324. 

Fitzgerald  v.  Equit.  Assoc.,  3  N.  Y.  Supp.  214. 

International  v.  Abbott,  85  Tex.  320;    20  S.  W.  118. 


CORPORATIONS  239 

present  at  an  irregular  meeting  and  joined  in  the 
transaction  of  business,  for,  as  has  been  said,  a  mi- 
nority has  the  right  to  have  a  meeting  properly  and 
lawfully  assembled,  to  be  present  at  it  and  take  part 
in  all  business  of  the  corporation,  and  to  have  an  op- 
portunity to  convince  the  majority,  if  possible,  to 
their  position;  and  unless  they  have  the  procedure 
regularly  followed,  they  have  the  right  to  avoid  any 
action  taken  at  such  meeting. 

Sec.  242.  But  the  irregularity  of  the  meeting 
may  be  waived,  although  it  requires  concerted  ac- 
tion of  all  the  members  to  accomplish  this  result. 
Thus,  where  a  meeting  is  held  without  the  required 
notice,  the  want  of  such  notice  is  waived  if  the  stock- 
holders appear  without  such  notice  and  take  part  or 
acquiesce  in  the  action  taken  at  such  meeting21.  The 
principle  here  involved  is  analagous  to  that  of  ser- 
vice of  process  in  a  civil  suit  where,  if  the  defendant 
enter  a  general  appearance  therein  under  a  defective 
summons  or  service  thereof,  or  even  without  any 
process  at  all,  he  is  bound  to  the  same  extent  as  if 
legally  served  with  such  process22.  And  in  the  case 
of  members  or  stockholders  of  a  corporation,  it  is 
said  that  by  attendance  at  meetings  they  admit  due 
notice23.  And  the  same  is  true  of  strict  statutory  re- 
quirements of  notice,  for  this  is  for  the  benefit  of  the 


21.  Kenton  Co.  v.  McAlpine,  5  Fed.  737. 
Jones  v.  Milton  Co.,   7  Ind.   547. 
Richardson  v.  Vermont  Co.,   44  Vt.   613. 
Bryant  v.  Goodnow,   5  Pick.   228    (Mass.). 
Union  Pac.  Co.  v.  Chicago,  Etc.  Co.,  51  Fed.  309. 
Nelson  v.  Hubbard,  96  Ala.  238 ;    11  So.  248. 
Bucksport,  Etc.  Co.  v.  Buck,  68  Me.  81. 

Handley  v.  Stultz,  139  U.  S.  417 ;    11  Sup.  Ct.  R.  530. 

22.  Judah  v.  Am.  Ins.  Co..  4  Ind.  333. 

23.  People  v.  Peck,  11  Wend.  604 ;    27  A.  D.  104. 


240  THE  LAW  OF  WAIVER 

stockholders  and  may  be  waived  by  them  by  attend- 
ance and  participation  in  the  meetings  and  acquiesc- 
ence in  the  things  done;  and  even  if  some  did  not 
attend  and  take  part  in  a  meeting,  they  waived  the 
want  of  proper  notice  by  subsequent  acts  of  ratifi- 
cation of  the  things  done24.  It  must  be  noted,  how- 
ever, that  to  constitute  a  waiver  of  irregularities  in 
the  calling  of  a  meeting  of  directors  or  stockholders, 
it  is  essential  that  they  meet  together  and  act  as  a 
body  if  participation  in  the  things  done  is  to  be  relied 
upon  as  a  waiver.  Their  consent  to  a  course  of  pro- 
cedure, obtained  at  different  times  and  places,  will 
not  dispense  with  the  necessity  of  calling  the  meet- 
ing properly.  Such  is  only  the  acts  of  individuals 
and  not  that  of  the  body25.  The  irregularity  of  a 
call  is  also  waived  if  no  objection  is  made  for  an 
unreasonable  time,  for  silence  in  such  case  is  a  rati- 
fication of  the  action  taken26. 

Sec.  243.  But  contrary  to  the  foregoing  doctrine, 
it  has  been  held  that  any  action  taken  by  a  quorum 
of  the  directors  of  a  corporation  is  binding  upon  the 
corporation  whether  the  other  members  were  noti- 
fied or  not  and  whether  the  meeting  was  for  the 
transaction  of  general  or  special  business27.  And  it 


24.  Benbow  v.  Cook,  115  N.  Car.  324;    20  S.  E.  453;    44  A.  S.  R.  454. 

citing : 

1  Cook  on  Stock  &  Stockholders,  Sec.  599. 
Stultz  v.   Handley,   41   Fed.   531. 
Campbell  v.  Hubbard,  96  Ala.  238;    11  So.  428. 

25.  Duke  v.  Markham,  105  N.  Car.  131;    10  S.  E.  1017;    18  A.  S.  R. 

889. 
Cited  in  Benbow  v.  Cook,   115  N.  Car.  324;   20   S.   E.   453;   44  A. 

S.  R.  454. 

Baldwin  v.  Canfield,  26  Minn.  43  and  65 ;    1  N.  W.  261  and  585. 
Pierce  v.  N.  O.  Bldg.  Co.,  9  La.  397;    29  A.  D.  448. 

26.  Weinburgh  v.  Union  Co.,  55  N.  J.  Eq.  640;    37  Atl.  1026. 

27.  Edgerly  v.  Emerson,  23  N.  H.  555;    55  A,  D.  206. 


CORPORATIONS  241 

is  said  that  by  virtue  of  the  provisions  of  the  stat- 
utes in  the  New  England  states,  especially  relating 
to  town  meetings,  that  the  courts  of  those  states  re- 
quire a  faithful  observance  of  the  requirement  as  to 
the  notice  of  meetings ;  and  that  the  notice  is  not 
waived  or  dispensed  with  by  the  voluntary  attend- 
ance and  participation  in  the  business  of  the  meet- 
ing28. 

Sec.  244.  But  the  better  reason,  and  the  major- 
ity of  courts,  support  the  theory  that  a  waiver  of 
notice  or  irregularities  in  the  meetings  occurs  where 
the  directors  all  meet  together  and  either  join  in  the 
action  taken,  or  assent  thereto,  or  subsequently  by 
their  acts  or  acquiescence  ratify  the  action  taken29. 
And  the  same  doctrine  obtains  if  the  meeting  is  of 
the  stockholders. 

3 .     ASSESSMENTS  AND  FORFEITURES  OF  SHARES : 

A.  WAIVER  AS  APPLIED  TO  ASSESS- 
MENTS : — Sec.  245.  An  Assessment,  as  applied  to 
corporations,  differs  from  a  Call  only  in  being  a 
broader  term  in  that  while  a  Call  is  the  resolution 
t/f  the  board  of  directors  declaring  payable  all  or 
a  portion  of  the  unpaid  subscriptions,  an  Assesa- 


28.     Hayward  v.  School  Dist.,  2  Gush.  419. 
Moor  v.  Newfield,  4  Me.  44. 
Bethany  v.  Sperry,   10  Conn.  200. 
Bloomfield  v.  Bank,  121  U.  S.  121. 
Jordan  v.  School  Dist.,  31  N.  H.  304. 
All  cited  In  1  Thompson  on  Corporations,  Art.   718. 

St.     Mut.  Ins.  Co.  v.  Farquhar,  86  Md.  668 ;    39  Atl.  527. 
Sampson  v.  Steam  Mill,  36  Me.  78. 
Atl.  Mut.  Co.  v.  Sanders,  36  N.  H.  252. 
State  v.  Conklin,  34  Wis.  21. 
Warner  v.  Mower,  11  Vt.  385. 
Stobo  v.  Davis  Co.,   55   111.  App.   440. 
Minneapolis  Co.  v.  Nimrocks,  53  Minn.  381 ;    55  N.  W.  54«. 


242  THE  LAW  OF  WAIVEB 

ment  may  mean  also  a  demand  for  payment 
above  the  par  value  of  shares  in  order  to  meet  the 
obligations  of  the  corporation30.  And  the  irregular- 
ity of  an  assessment,  as  between  the  corporation  and 
a  shareholder,  is  sufficient  to  release  the  latter  from 
payment  unless  he  has  by  his  conduct  precluded  him- 
self from  setting  up  the  irregularity.  Such  irregu- 
larity may  be  waived  by  him,  and  it  will  be  held  to 
apply  if,  by  his  conduct,  he  shows  an  intention  not 
to  rely  upon  it.  This  intention  may  be  inferred  if 
the  shareholder  participate  in  a  meeting  called  for 
organization,  accepts  a  directorship,  assists  in  fram- 
ing the  by-laws  under  which  the  assessment  is  lev- 
ied, or  votes  for  its  adoption,  provided,  of  course, 
he  knows  at  the  time  of  the  irregularity31.  And  the 
same  is  true  if  the  conduct  relied  upon  as  a  waiver 
be  in  effect  a  ratification  of  the  irregular  act32. 

But  it  has  been  held  that  where  a  city  voted  to 
pay  a  call,  such  vote  did  not  waive  irregularities  in 
the  call38,  and  that  where  part  of  a  subscription  was 
paid  such  payment  did  not  waive  the  right  to  require 
proper  calls  to  be  made  for  the  remainder  of  the  sub- 
scription34. 

B.  FORFEITURE  OF  SHARES :— Sec.  246. 
The  authority  of  a  corporation  to  declare  stock  for- 
feited for  non-payment  of  calls  or  assessments  and 
to  sell  same  for  such  payment  does  not  exist  as  a 


30.  1  Purdy's  Beach  on  Private  Corporations,  Art.  303. 

31.  Willamette  Co.  v.  Stannus,  4  Oreg.  261. 
Bucksport  Co.  v.  Buck,  68  Me.  81. 
Clark  v.  Navig.  Co.,  10  Watts.  364   (Pa.). 

32.  Grabner  v.  Post,  96  N.  W.  783  (Wis.). 
33.     Pike  v.  Bangor  Ky.  Co.,  68  Me.  445. 

34.     Groose  Co.  v.  I'Anson,  43  N.  J.  L.  442. 


COEPOKATIONS  243 

common-law  method,  but  is  conferred  only  by  stat- 
ute. And  when  the  power  is  given,  the  statutory  pro- 
vision must  be  strictly  complied  with.  And  it  must 
further  be  exercised  without  unreasonable  delay ;  for 
if  before  the  forfeiture  should  be  declared  the  stock- 
holder tender  the  amount  due,  the  default  will  be 
cured.  And  it  has  been  held  in  at  least  one  case35 
that  where  the  power  to  sell  for  non-payment  is  giv- 
en it  must  be  exercised  as  each  call  is  made,  and  that 
failure  to  sell  for  each  call  will  be  a  waiver  of  the 
right  to  take  advantage  of  the  statute  at  all.  But 
this  is  contrary  to  good  reason  and  to  all  principles 
upon  which  the  doctrine  of  waiver  is  based,  and  the 
opposite  has  been  held36. 

Sec.  247.  And  where  the  statutory  forfeiture 
exists,  the  corporation  must  elect  between  that  mode 
of  enforcing  payment  and  the  right  to  sue  the  stock- 
holder directly  for  the  amount  due.  For  under  the 
law  regulating  the  election  of  remedies,  proceeding 
under  one  method  is  a  waiver  of  the  other37.  But 
of  course  either  remedy  may  be  pursued,  and  the  cor- 
poration may  waive  the  statutory  right  to  declare  the 
shares  forfeited  and  sue  in  assumpsit38.  And  the 
waiver  is  entire  as  to  each  remedy,  for  the  corpora- 
tion cannot  sell  the  shares  under  the  forfeiture  stat- 


35.  Stokes  v.  Lebanon  Co.,   6  Humph.  241,  cited  In: 
Purdy's   Beach,   Priv.    Corp.    323  (C). 

36.  Brockenbrough  v.  James  R.  Co.,   1   Patt.  &  H.   94    (Va.). 

37.  Macon  Ry.  Co.  v.  Vason,  57  Ga.  314. 
Kermebec  Ry.  Co.  v.  Kendall,  31  Me.  470. 
Rutland  Ry.  Co.  v.  Thrall,  35  Vt.  536. 
Macauley  v.  Robinson,  18  La.  Ann.  619. 
Mills  v.   Stewart,   41   N.  Y.   384. 

88.     Alkali  Co.  v.  Campbell,   113  Fed.   398. 

Campbell  v.  American  Co.,  125  Fed.  207. 


244  THE  LAW  OF  WAIVES 

ute,  and  then  sue  the  shareholder  in  an  action  for 
the  unpaid  balance39. 

Sec.  248.  But  as  has  been  noted,  the  method 
prescribed  by  statute  must  be  strictly  followed  where 
shares  of  stock  are  to  be  forfeited  and  sold  for  non- 
payment of  calls  or  assessments;  and  in  case  of  ir- 
regularities in  pursuit  of  such  method,  the  share- 
holder has  the  right  to  enjoin  the  sale  or  he  may  have 
it  set  aside  after  it  is  made.  In  such  event  the  for- 
feiture and  consequent  sale  are  not  void  but  void- 
able ;  and  both  the  shareholder  and  the  corporation 
may  by  their  conduct  waive  the  irregularities  and 
validate  the  proceeding.  Thus,  it  has  been  held  that 
acquiescence  in  what  has  been  done  may  constitute 
such  waiver40.  And  this  is  especially  true  if  the  ac- 
quiescence continue  for  a  long  or  unreasonable  time 
after  knowledge  of  the  irregularity  or  particular 
facts  rendering  the  forfeiture  voidable.  To  say  this 
is  but  a  reiteration  of  the  well-established  principle 
that  a  party  must  take  prompt  action  to  maintain  his 
rights  in  a  matter  wherein  his  non-action  might  mis- 
lead innocent  parties  into  actions  which  they  other- 
wise might  not  pursue,  or  might  cause  them  to  act 
to  their  disadvantage. 

4.     TRANIST?TEfR  OF  STOCK  AND  MEN  ON  SHARES: 

A.  TRANSFER  OF  STOCK :  -Sec.  249.  The 
usual  requirement  as  to  transfer  of  a  stockholder's 
interest  in  a  corporation  is  that  the  transfer  shall 


89.     Mechanic's    Co.   v.   Hall,    121    Mass.    272. 

Allen  v.  Montgomery  Ry.  Co.,  11  Ala.  437. 

Small  v.  Herkimer  Co.,  2  N.  T.  330. 

Athol  Ry.  Co.  v.  Prescott,   110  Mass.  213. 
40.     Kennebec  Ry.  Co.  v.  Kendall,  31  Me.  470. 


COEPOEATIONS  245 

not  be  valid  or  effective  until  it  is  made  on  the  books 
of  the  corporation.  This  is  usually  provided  by 
statute  or  the  charter  or  is  one  of  the  by-laws  of  the 
concern.  The  provision  is  for  the  benefit  of  the  cor- 
poration, and,  more  particularly,  for  the  protection 
of  third  parties  or  creditors,  and  it  does  not  mean 
that  a  transfer  or  sale  of  shares  without  a  transfer 
thereof  on  the  books  is  absolutely  illegal.  The  shares 
are  property  and  the  rights  of  property  are 
vested  in  the  owner  so  that  he  may,  as  an  incident 
of  the  right  of  property,  transfer  them  the  same  as 
any  other  property;  and  as  between  him  and  his 
transferee,  all  of  his  rights  may  be  divested  without 
the  formal  transfer  of  the  shares  on  the  books  of  the 
company41  and  the  transaction  have  all  the  effect  and 
validity  of  a  strict  compliance  with  formalities.  It 
has  been  held  that  a  corporation  has  the  right  to  re- 
gard a  transferee  of  stock  as  the  legal  owner  there- 
of42. And  there  is  also  a  rule  that  a  corporation, 
acting  in  good  faith  and  without  notice  of  the  rights 
of  others,  may  treat  registered  shareholders  as  the 
actual  owners  of  shares  standing  in  their  names.  But 
it  has  been  said  that  this  latter  rule  is  applicable  to 
only  such  transactions  as  are  within  the  express  or 
implied  powers  conferred  upon  the  corporation  or 
its  shareholders.  Corporate  powers,  common  to  all 
stockholders,  may  usually  be  exercised  by  a  reg- 


41.  Lund  v.  Wheaton  Co.,   50  Minn.   36;    52  N.  W.   268;    36  A.   S.  R. 

623. 

Boston  AE.SOC.  v.  Gary,  129  Mass.  435. 
Hoppin  v.  Buffum,  9  R.  I.  513 ;    11  A.  R.  291. 
Johnston  v.  Loflln,  103  U.  S.  800. 
And  numerous  cases  cited  In  2  Thomp.  Corp.,  Sec.  2389. 

42.  Supply  Ditch  Co.  v.  Elliott,  10  Colo.  327;    16  Pac.  691;    3  A.  S. 

R.  586. 


246  THE  LAW  OF  WAIVER 

istered  shareholder  though  he  has  assigned  all  his 
shares,  and  his  action  will  bind  his  assignee  holding 
under  an  unregistered  transfer,  and  all  others.  Pur- 
chasers are  bound  to  know  that  such  powers  may  be 
exercised  by  their  assignors  until  the  stock  is  regis- 
tered in  their  names.  But  the  assignee  of  shares, 
having  possession  of  the  certificates,  though  holding 
under  an  unregistered  transfer,  is  not  bound  by  con- 
tracts between  the  registered  shareholder,  the  cor- 
poration and  all  other  shareholders  which  are  not 
within  the  express  or  implied  powers  of  corporations 
or  of  their  shareholders43. 

Sec.  250.  But,  while  the  corporation  has  the 
right  to  regard  and  treat  him  as  the  owner  of  shares 
whose  name  appears  as  such  on  its  books,  yet  it  is 
not  compelled  to  do  so,  and  may,  despite  irregulari- 
ties or  defects  in  the  transfer,  or  non-compliance 
with  requirements  as  to  transfer,  so  deal  with  the 
transferee  or  recognize  him  as  to  render  him  a  share- 
holder for  all  purposes.  In  such  event  the  irregu- 
larities or  informalities  are  deemed  to  have  been 
waived  by  the  corporation44.  And  if  such  recogni- 
tion and  treatment  of  the  transferee  by  the  corpora- 
tion amount  to  a  waiver  by  it,  the  same  effect  will  be 
imputed  to  the  transferee  if  he  assent  thereto  with 
knowledge  of  the  facts45.  And  while  some  courts  do 
not  apply  this  principle  in  all  its  breadth46,  no  good 
reason  occurs  to  us  why  informalities  and  irregular- 


43.  Campbell  v.  Am.  Zylonite  Co.,  122  N.  T.  455;    34  N.  Y.  St.  R.  38; 

25  N.  E.  853  ;    11  L.  R.  A.  596. 

44.  Am.  Nat.  Bank  v.  Oriental  Mills,  17  R.  I.  651 ;    23  Atl.  795. 

45.  Upton    v.    Burnham,    3    Biss    (U.    S.)    431;     and   second    hearing 

thereof,   Id.   520. 

46.  Vale  Mills  v.  Spalding,  62  N.  H.  605. 

Cormac  v.  Western  Co.,  77  la.  32 ;    41  N.  W.  480. 


COKPOEATIOTTS  247 

ities  in  the  transfer  may  not  be  waived  by  those  hav- 
ing a  right  to  insist  upon  a  strict  compliance  with  re- 
quirements, and  thereby  render  the  transferee  en- 
titled to  recognition  and  to  receive  dividends  as  a 
shareholder  and  at  the  same  time  to  make  him  di- 
rectly liable  for  future  calls  or  assessments47. 

Sec.  251.  Thus,  in  a  well-considered  New  York 
case  discussing  whether  the  legal  or  equitable  title, 
or  both  passed  by  an  assignment  of  certificates  of 
shares  without  formal  transfer  on  the  books  of  the 
corporation,  it  was  said  to  be  settled  by  repeated  ad- 
judications that,  as  between  the  parties,  delivery  of 
the  certificates  and  assignment  passed  the  entire 
title,  legal  and  equitable,  notwithstanding  that  by  the 
terms  of  the  charter  or  by-laws  of  the  corporation 
the  stock  is  declared  to  be  transferable  only  on  the 
books;  that  such  provisions  are  intended  solely  for 
the  benefit  and  protection  of  the  corporation,  and  can 
be  waived  or  asserted  at  its  pleasure48.  And  when 
such  waiver  has  been  made  by  the  corporation,  the 
holder  of  the  certificate  becomes  a  shareholder  as  to 
the  corporation  as  well  as  to  creditors49. 

Sec.  252.  Frequently  a  charter  or  by-law  re- 
quires that  a  transfer  shall  not  be  valid  unless  the 
consent  of  the  directors  thereto  be  obtained.  But 


47.  Bell's  Appeal,   115  Pa.  St.   88;    2  A.  S.  R.  532. 

48.  McNeil  v.  Bank,  46  N.  T.  325;    7  A.  R.  341,  citing: 
8th    Ed.    Angell    &    Ames,    Corporations,    Art.    354. 
Gilbert  v.  Manchester  Co.,  11  Wend.  627. 

N.  T.  Ry.  Co.  v.  Schuyler,  34  N.  T.  80. 

And  see:    Black  v.  Zacharie,  3  How.  513    (U.  S.). 

But  see:    Union  Bank  v.  Laird,  2  Wheat.  390   (U.  S.). 

Shipman  v.  Aetna  Co.,  29  Conn.  245. 

Naglee  v.  Pac.  Co.,  20  Cal.  529. 

49.  Laing  v.  Burley,  101  111.  591. 


248  THE  LAW  OF  WAIVER 

this  consent  need  not  be  obtained  in  a  formal  man- 
ner or  at  a  formal  meeting  as  it  will  be  sufficient  that 
a  majority  of  the  directors  assent  to  the  transfer50. 
And  the  requirement  may  be  waived  altogether,  and 
it  is  waived  if  the  conduct  of  the  corporation  has 
been  sufficient  in  such  matters  to  establish  a  custom 
to  admit  assignees  without  action  by  the  board ;  and 
in  such  cases  a  transfer  without  the  sanction  of  the 
board  will  be  valid51. 

B.  WAIVER  OF  LIEN  ON  SHARES:— Sec. 
253.  The  statutes  of  many  states  give  to  a  corpora- 
tion a  lien  on  the  shares  of  its  members  for  any 
amount  in  which  the  members  may  be  indebted  to  it. 
And  where  there  is  no  such  statute  the  lien  may  be 
created  by  a  by-law  of  the  corporation,  or  an  agree- 
ment among  the  shareholders,  or  even  by  a  course  of 
dealing  establishing  a  custom52.  But  the  lien  must 
be  created  in  one  of  these  manners,  as  it  does  not 
exist  at  common  law.  The  effect  where  such  lien  is 
given  is  that  the  shares  cannot  be  transferred  till 
the  owner  has  satisfied  his  indebtedness  to  the  cor- 
poration, or  if  they  be  transferred,  the  vendee  takes 
them  subject  to  such  lien. 

Sec.  254.  But  when  a  custom,  agreement  or  by- 
law is  relied  upon  as  creating  a  lien,  positive  action 
is  necessary  to  render  it  effective,  for  if  the  rights 
of  the  corporation  be  not  asserted  in  such  cases,  the 
lien  will  be  considered  abandoned  or  waived  and  a 
purchaser  in  such  event  will  take  the  shares  freed 
from  such  lien.  It  is  held,  however,  that  mere  ig- 


50.  Ellison  v.  Schneider,  25  La.  Ann.  435. 

51.  Chambersburg  Co.  v.  Smith,  11  Pa.  St.  120. 

52.  2  Purdy*s  Beach  on  Priv.  Corp.,  Sec.  488. 


COKPORATIONS  249 

norance  of  the  vendee  of  the  fact  that  a  lien  exists 
on  the  shares  has  no  effect  as  it  could  under  no  con- 
struction be  said  to  be  a  waiver  by  the  corporation53. 
And  failure  to  assert  a  statutory  lien  is  not  a  waiver 
of  it  where  notice  of  such  lien  appears  on  the  certi- 
ficate54. Nor  is  a  waiver  produced  -by  the  taking  of 
a  mortgage  on  other  property  to  secure  the  indebted- 
ness unless  it  clearly  appears  that  soich  was  the  in- 
tention of  the  parties55.  Of  course,  the  lien  may  be 
waived  by  looking  solely  to  the  personal  credit  of  the 
shareholder  for  payment  of  the  indebtedness  or  re- 
lying exclusively  upon  other  security,  but  it  must 
clearly  appear  that  payment  was  anticipated  from 
some  source  without  reference  to  the  shares  of  stock 
or  no  waiver  will  be  inferred56.  And  where  the  cer- 
tificate recited  that  the  holder  was  entitled  to  a  cer- 
tain number  of  shares  transferable  only  upon  sur- 
render of  the  certificate,  it  was  held  that  such  pro- 
vision was  no  waiver  of  the  lien  given  the  corpora- 
tion on  the  shares  for  any  indebtedness  of  the  origi- 
nal holder  of  it57. 

Sec.  255.  But  a  different  condition  exists  where 
the  shares  recite  that  they  are  fully  paid  up,  and  the 
corporation  as  against  a  bona  fide  transferee  at- 
tempts to  assert  a  lien  thereon  for  an  unpaid  balance. 


63.  Hammond  v.   Hastings,   134  U.    S.   401;    10   Sup.   Ct.   R.    727;   33 

L.  Ed.   960. 

64.  First  N.  Bank  v.  Hartford  Co.,  45  Conn.  22. 
National  Bank  v.  Watsontown  Bank,  105  U.  S.  217. 

65.  Union  Bank  v.  Laird,  2  Wheat.  396   (U.  S.). 
Kenton  Ins.  Co.  v.  Bowman,  84  Ky.  430;    1  S.  W.  717. 

56.     Jennings  v.  Bank,  79  Cal.  323  ;    25  Pac.  852  ;    12  A.  S.  R.  145. 
67.     Reese  v.  Bank,  14  Md.  271 ;    74  A.  D.  536. 

See:    Cecil  N.  Bank  v.  Watsontown  Bank,  105  U.  S.  217. 

Bishop  v.  Globe  Co.,  135  Mass.  132. 

Kenton  Ins.  Co.  v.  Bowman,  84  Ky.  430. 


250  THE  LAW  OF  WAIVER 

Here  the  purchaser  of  such  shares  boiys  them  as 
fully  paid  for  and  without  notice  that  they  are  not 
paid  for,  and  no  implication  of  an  agreement  arises 
to  pay  anything  to  the  corporation  for  them,  as  there 
are  no  facts  from  which  such  an  implication  can 
arise.  The  recital  on  the  face  of  the  certificate  is  a 
representation  by  the  corporation  or  its  officers  that 
a  condition  exists  which  they  will  not  later  be  heard 
to  gainsay  to  the  injury  of  an  innocent  holder58.  In 
other  words,  the  right  of  the  corporation  to  the  lien 
on  shares  for  any  indebtedness  of  the  original  holder 
is  waived  by  such  representation.  The  same  result 
is  produced  by  a  statement  on  the  certificate  that  it 
is  transferable59. 

Sec.  256.  And  it  has  even  been  said  that  it  is 
the  duty  of  the  corporation  to  make  the  certificate  of 
shares  show  the  exact  claims  it  may  have  against  the 
shares  for  any  unpaid  balance  from  the  original 
holder,  and  especially  if  it  claim  a  lien  thereon  by 
reason  of  a  by-law  to  that  effect  the  certificate  must, 
as  against  an  innocent  purchaser,  disclose  this  se- 
cret lien  or  it  will  not  be  held  effective.  It  is  said 
that  the  general  policy  of  the  law  is  against  such  se- 
cret liens;  and  the  corporation  owes  a  duty  to  the 
pu'blic  to  make  known  such  a  lien  by  printing  a  notice 
thereof  on  its  certificate  or  by  other  appropriate 
means60.  Unless  some  such  notice  be  given,  the  cor- 


58.  West    Nashville    Co.    v.    Bank.    86    Tenn.    252;    6    S.    W.    340;    6 

A.  S.  R.  835. 

Morawetz  on  Corporations,  Sec.  161. 
Cook  on  Stocks,  Sees.  50,  257,  418. 

59.  Fitzhugh  v.  Bank,  3  T.  B.  Mon.  126 ;    16  A.  D.  90. 

60.  2   Thompson,  Corporations,  Arts.  2334  and  1680,   citing: 
Foreman  v.  Bigelow,  4  Cliff.  508  (U.  S.). 

Brant  v.  Ehler,  59  Md.  1. 

Phelan  v.  Hazard,  5  Dill.  45  (U.  S.). 


CORPORATIONS  251 

poration  cannot  hold  a  bona  fide  purchaser  for  value 
for  any  unpaid  balance  on  the  shares61 ;  nor  will  he 
be  liable  to  creditors  therefor,  it  even  being  said  that 
it  does  not  matter  if  the  certificates  are  silent  as  to 
whether  or  not  the  shares  are  paid  for62.  But  Thomp- 
son, in  his  work  on  corporations,  states  that  the  qual- 
ification that  there  is  nothing  on  the  books  of  the  cor- 
poration to  apprise  one  that  the  shares  are  not  paid 
for  is  very  necessary  to  vindicate  these  holdings; 
for  he  says  that  otherwise  all  that  a  subscriber  who 
might  become  sick  of  his  bargain  would  have  to  do 
in  order  to  pay  for  his  shares  would  be  to  sell  them63. 
But  we  cannot  agree  with  the  learned  author  where 
the  certificates  recite  that  the  shares  are  fully  paid 
for.  Such  recital,  as  before  noted,  amounts  to  a  rep- 
resentation to  the  truth  of  which  the  corporation 
should  be  held.  And  while  in  the  face  of  such  a  re- 
cital the  corporation  may  assert  its  lien  as  against 
the  original  holder  for  a  balance  due  on  the  shares, 
to  go  farther  and  say  that  it  may  treat  an  innocent 
transferee  the  same  way,  occurs  to  us  as  calculated 
to  produce  gross  injustice.  It  may  be  true,  as  the 
author  above  mentioned  says,  that  all  that  a  sub- 
scriber who  might  become  sick  of  his  bargain  would 
have  to  do  to  pay  for  his  shares  would  be  to  sell 
them.  But  it  must  be  remembered  that  such  a  con- 
dition is  produced  by  the  voluntary  act  of  the  cor- 
poration in  making  the  false  statement  as  to  such 
shares  being  paid  for,  and  for  such  act  and  repre- 
sentation the  corporation  should  suffer  rather  than 
an  innocent  purchaser  of  the  shares. 

61.  Keystone  Co.  v.  McCluney,   S   Mo.  App.   496. 
Sprainka  v.  Allen,  76  Mo.  384. 

62.  Keystone  Co.  v.  McCluney,  supra. 

63.  2  Thompson,  Corporations,   Art.   681. 


262 

Sec.  257.  If  the  governing  statute  provide  that 
no  transfer  of  shares  shall  be  made  while  the  holder 
is  indebted  to  the  corporation,  the  provision  is 
waived  and  the  right  surrendered  if  the  corporation 
permit  registration  of  the  shares  in  the  name  of  a 
transferee  without  requiring  payment  of  such  in- 
debtedness64. And  the  giving  of  further  credit  to  a 
shareholder  with  knowledge  of  a  conflicting  lien,  is, 
as  to  such  other  lien,  a  waiver  by  the  corporation  of 
the  lien  allowed  it  by  law65. 

5.  BIGHT  OF  STATE  TO  CANCEL  CHAR- 
TEE: — Sec.  258.  The  existence  or  non-existence, 
as  the  case  may  be,  of  many  facts  or  conditions  will 
give  to  a  state  the  right  to  declare  forfeited  or  to 
cancel  and  annul  the  charter  of  a  corporation  or- 
ganized under  its  laws.  But  this  right  belongs  ex- 
clusively to  the  state,  and  with  it  individuals  have 
nothing  to  do.  Any  breach  of  a  condition  upon 
which  the  charter  was  granted,  however,  may  be 
waived  by  the  state  and  the  corporation  continue 
under  the  charter  the  same  as  if  no  breach  occurred, 
and  thereafter  the  cause  for  forfeiture  cannot  be  in- 
sisted upon  by  the  state66.  This  principle  will  be 
applied  where  the  corporation  has  been  allowed  or 
compelled,  by  those  chiefly  interested,  to  proceed  at 
great  expense  under  the  franchise  sought  to  be  an- 
nulled, for  a  considerable  period  of  time  'while  the 


84.     Cecil  Bank  v.  Watsontown  Bank,   105  U.  S.   217. 
Hill  v.  Pine  Bank,  45  N.  H.  300. 
Hodges  v.  Bank,  7  Gill.  306   (Md.). 

65.  Nesmith  v.  Wash.  Bank,  6  Pick.  324. 

66.  People  v.  Ulster  Co.,  128  N.  Y.  240  ;    28  N.  E.  635. 
People  v.  Manhattan   Co.,   9  Wend.  361    (N.   Y.). 
Foster  v.  Joilet,   27  Fed.  899. 


COBPOKATIONS  253 

ground  relied  upon  for  a  forfeiture  was  well  known67. 
And  long  delay  in  taking  advantage  of  a  ground  for 
forfeiture  has  been  held  sufficient  to  constitute  a 
waiver68.  The  question  of  waiver  in  this,  as  in  most 
other  instances  is  one  of  intention  which  may  be 
evidenced  by  an  act  of  the  state  legislature  express- 
ly remitting  the  penalty  or  recognizing  the  corpora- 
tion after  knowledge  of  the  cause  for  forfeiture,  or 
by  laches  of  the  state  in  enforcing  the  forfeiture. 
But  it  is  said  that  mere  good  behavior  of  a  corpor- 
ation after  the  existence  of  grounds  of  forfeiture  is 
not  a  legal  atonement69. 

.Sec.  259.  A  charter  required  a  certain  sum  to 
be  paid  in  within  two  years.  The  payment  was  not 
made  and  the  corporation  operated  its  business  for 
seven  years  and  it  was  held  that  by  such  delay  and 
acquiescence  the  state  could  not  declare  the  forfeit- 
ure of  the  charter  on  account  of  such  non-payment70. 
But  the  soundness  of  this  doctrine  has  been  denied71. 
Another  charter  made  it  the  duty  of  the  corporation 
to  lay  before  the  legislature  at  the  end  of  every  six 
years  after  setting  up  any  toll-gate,  an  account  of 
the  expenditures  and  profits  of  the  road  under  the 
penalty  of  forfeiting  the  privileges  of  the  act  in  the 
future.  But  where  the  accounts  were  accepted  by 
the  legislature  after  the  time  limited,  it  was  held 
that  the  right  to  declare  a  forfeiture  of  the  charter 
was  waived72.  And  in  the  same  case  it  was  held  that 


67.  State  v.  Janesville  Co.,  92  Wis.  496;    66  N.  W.  512;    32  L.  R.  A. 

391. 

68.  People  v.  Oakland  Bank,  1  Dougl.  282   (Mich.). 

69.  People  v.  Fishkill  Co.,  27  Barb.  445. 

70.  People  v.  Oakland  Bank,  1  Dougl.  282   (Mich.). 

71.  State  v.  Pawtuxet  Co.,  8  R.  I.  521 ;    94  A.  D.  123. 

12.  Scate  v.  Fourth  Turnpike,  15  N.  H.  162 ;  41  A.  D.  690. 


264  THE  LAW  OF  WAIVER 

the  neglect  to  render  the  accounts  was  waived  by  a 
subsequent  act  of  the  legislature  authorizing  the  cor- 
poration to  change  the  route  of  its  road.  So,  the 
right  to  a  forfeiture  is  waived  where  the  legislature, 
subsequent  to  the  accrual  of  the  right  to  a  forfeiture, 
declares  in  distinct  terms  that  the  corporation  shall 
continue,  or  where  it  thereafter  authorizes  the  cor- 
poration to  perform  certain  corporate  functions,  or 
otherwise  clearly  signifies  its  intention  that  the  cor- 
poration shall  continue  to  exist73.  And  the  state 
waives  the  right  to  a  forfeiture  of  corporate  rights 
by  an  act  of  the  legislature  extending  the  time  fer 
the  commencement  of  certain  work  when  the  corpora- 
tion has  already  failed  to  commence  operations  in 
the  time  prescribed  by  the  act  of  incorporation74. 

Sec.  269.  Where  the  charter  of  a  turnpike  road 
company  was  conditioned  that  its  road  should  be 
built  in  a  specified  manner  'before  tolls  should  be 
levied,  a  breach  of  this  condition  was  held  waived 
by  a  supplementary  act  of  the  legislature  giving  au- 
thority to  the  company  to  take  tolls  in  a  manner  in- 
consistent with  that  first  prescribed75.  And  in  the 
case  of  a  corporation  chartered  for  the  purpose  of 
taking  tolls  for  the  navigation  of  an  artificial  chan- 
nel, an  act  of  the  legislature  declaring  that  if  the 
company  should  permit  the  channel  to  become  so  ob- 


73.  State  v.  Bank  of  Charleston,  2  McMull.  Law,  439 ;    39  A.  D.  135. 

74.  Milford  Co.  v.  Brush,  10  Oh.  Ill ;    36  A.  D.  78. 

75.  State  v.  Goodwinsville  Co.,  44  N.  J.  496. 
See:    Mechanics  Society,  31  La.  Ann.  627. 
Basshor  v.  Dressel,   34  Md.   503. 

People  v.  Ottowa  Co.,  115  111.  281 ;    5  N.  E.  413. 
Central  Co.  v.  People,  5  Colo.  39. 
State  v.   Vincennes  University,   5   Ind.   77. 
Baltimore  Co.  v.  Marshall  Co.,  3  W.  Va.  319. 


COEPOEATIONS  255 

structed  as  to  impede  navigation  the  collection  of 
tolls  should  be  suspended  till  the  obstruction  was 
removed,  was  held  a  waiver  of  the  right  to  have  the 
charter  forfeited  for  such  cause76.  And,  again,  where 
a  deposit  of  a  certain  sum  in  cash  with  the  state 
Treasurer  was  required  as  a  condition  precedent  to 
the  beginning  of  operations  by  the  corporation,  this 
requirement  was  held  waived  by  the  acceptance  of 
United  States  Bonds  in  lieu  of  the  cash  deposit77. 

Sec.  261.  But  it  is  said  that  the  doctrine  of 
waiver  of  the  right  to  declare  a  forfeiture  of  a  char- 
ter by  subsequent  legislative  acts  does  not  apply 
where,  by  the  terms  of  the  charter,  the  franchise  ab- 
solutely terminates  upon  failure  to  perform  certain 
conditions78.  In  such  case  no  action  is  necessary  to 
be  performed  by  the  state,  as  the  failure  to  perform 
the  condition  ipso  facto  works  a  forfeiture.  But  un- 
less the  charter  contain  some  such  provision,  it  must 
be  annulled  by  the  state  through  some  appropriate 
action,  if  the  state  would  take  advantage  of  its  right 
accruing  by  reason  of  the  breach  of  condition;  for 
otherwise  the  corporation  will  continue  notwith- 
standing the  breach  of  condition. 


76.  State  v.  Morris,  73  Tex.  435;    11  S.  W.  392. 

77.  Briggs  v.  Cape  Cod  Co.,  137  Mass.  71. 

See:   Rice  v.  National  Bank,  126  Mass.  300. 

78.  State  v.  Fourth  Turnpike,  15  N.  H.  162 ;    41  A.  D.  690. 


256  THE  LAW  OF  WAIVES 


CHAPTER  12. 

INSURANCE. 

Section 

1.  RELATION      BETWEEN      INSURER      AND      ITS 
AGENTS— 

A.  In  General 262 

B.  Who  Are  Agents,  Who  May  Waive  Rights.  .  .269 

C.  Clerks 272 

2.  WHAT  MAY  BE  WAITED;  WHAT  AMOUNTS  TO 
A  WAIVER — 

A.  Acts  Prohibited  By  Charter 274 

B.  Conditions — 

(1)  Breach  of  conditions  prior  to   deliv- 
ery of  policy 277 

(a)  Condition  as  to  title 279 

(b)  Condition  as  to  encumbrances.  .282 

(c)  Condition  as  to  vacancy 285 

(d)  Condition  as  to  use  of  remises  286 

(e)  Condition  as  to  prior  insurance,  287 

(f)  Condition  as  to  iron-safe  clause  289 

(2)  Breach   of   conditions   subsequent   to 
delivery  of  policy — 

(a)  Change  in  title 291 

(b)  Vacancy 293 

(c)  Encumbrances 295 

Condition  as  to  use  of  premises  286 

Condition  as  to  prior  insurance  287 

C.  Payment  Of  Premium — 

(1)  Before  delivery  of  policy — 

(a)     In  (general 304 

(2)  After  delivery  of  policy — 

(a)  Theory  that  payment  at  matur- 
ity may  be  waived 308 

(b)  By  custom 312 

(3)  Waiver  of  cash  payment 314 

I.    FORFEITURES — 

A.  In  General .^  . . . .  31i5 

B.  Indorsement  Of  Waiver  On  Policy. 317 


INSURANCE  257 

4.   NOTICE  OF  LOSS— 

A.  Silence    Of    Insurer,   Or   Failure    To    Object 

Not  A  Waiver 320 

B.  Contrary  View 322 

C.  Distinction  Between  Notice  Out  Of  Time  and 

Notice  Defective  In  Form. 323 

6.  PROOFS  OF  LOSS — 

A.  Failure  To  File  Any  Proofs — 

(1)  In  general 324 

(2)  By  denial  of  liability 325 

(3)  Refusal  to  pay  on  other  grounds.  .  .  .326 

(4)  By  other  acts  or  conduct 327 

B.  Defective  Proofs  Within  Time  Required — 

(1)  No  objection  by  insurer 329 

(2)  Objection  on  other  grounds 332 

C.  Not  Filed  In  Time. 333 

D.  Who  May  Waive  Proofs 335 

IE.     Whether  Proofs  May  Be  Waived  Orally — 

(1)  In  the  negative 337 

(2)  In  the  affirmative 338 

8.     AIRBIT1RATION 339 

7.  "LIMITATION  OF  TIME  TO  SUE. — 

A.  What  Constitutes  A  Waiver »  .  .« 341 

B.  Acts  Not  A  Waiver 342 

1.      RELATION  BETWEEN  INSURER  AND  ITS  AGENTS. 

A.  IN  GENEBAL:— Sec.  262.  The  business 
of  insurance  is  carried  on  almost  exclusively  by  cor- 
porations, due  to  the  vastness  of  the  field  covered  and 
to  the  large  amount  of  capital  necessary  for  its  op- 
erations and  a  compliance  with  the  statutes  all  states 
have  enacted  for  safe-guarding  the  public.  These 
corporations,  being  impersonal,  must  necessarily 
act  by  officers  and  agents.  And  the  field  has  become 
fertile  with  endeavors  to  limit  the  liability  of  the  in- 
surer to  the  insured,  especially  by  attempts  to  pro- 


258  THE  LAW  OF  WAIVER 

vide  restrictions  on  the  manner  in  which,  the  busi- 
ness may  be  carried  on,  and  more  especially  through 
stipulations  contrived  to  circumscribe  the  powers 
of  the  agents,  and  to  limit  their  acts  and  prescribe 
an  exclusive  manner  in  which  such  acts  shall  be 
shown.  Such  stipulations  and  attempted  restric- 
tions have  given  rise  to  endless  litigation,  the  report- 
ed cases  thereon  being  so  numerous  and  covering 
the  application  of  law  to  such  a  variety  of  facts,  that 
an  apparent  discord  among  the  courts  is  presented 
as  to  the  enunciation  of  principles,  which  is,  how- 
ever, more  apparent  than  real ;  for,  underlying  near- 
ly all  of  the  cases,  is  a  recognition  of  certain  prin- 
ciples which  have  gradually  been  evolved  for  the 
protection  of  the  public  and  at  the  same  time  for  the 
giving  scope  to  all  powers  necessary  for  the  per- 
formance of  the  functions  of  an  insurer. 

Sec.  263.  The  question  most  frequently  pre- 
sented to  the  courts  for  solution  is  based  on  attempts 
by  the  insurer  to  prescribe  the  extent  to  which  the 
acts  of  its  agents  may  be  binding  upon  it,  and  how 
those  acts  shall  be  manifested.  There  is  no  good 
reason  why  a  corporation  may  not  limit  the  acts  of 
its  agents  and  prescribe  the  way  they  shall  perform 
their  duties,  the  same  as  an  individual.  A  different 
rule  would  place  them  at  the  mercy  of  unscrupulous 
agents,  and  prove  disastrous  to  the  insurance  busi- 
ness. And  for  such  reasons,  the  general  rules  of 
agency  applicable  to  individuals  should  be  and  are 
equally  applicable  to  insurance  companies.  The  ex- 
tent of  the  power  of  such  companies,  however,  to  lim- 
it or  restrict  the  power  or  authority  of  their  agents 
will  not  permit  fraud  to  be  legalized  nor  the  corpora- 


INSUBAKCB  259 

tion  to  be  deprived  of  powers  given  it  by  organic 
law. 

Sec.  264.  Contracts  of  insurance  nearly  al- 
ways contain  conditions  upon  the  existence  or  non- 
existence  of  which,  as  the  case  may  be,  depends  the 
validity  of  the  contract.  The  facts  constituting  the 
condition  may  exist  prior  to,  at  or  subsequent  to  the 
issuance  of  the  policy,  and  the  provision  always  is 
that  such  named  facts  shall  render  the  contract  of 
insurance  void  unless  consented  to  or  waived  by  the 
insurer,  acting  by  its  proper  agent  in  a  designated 
manner,  usually  by  memorandum  of  writing  in- 
dorsed on  the  policy  itself.  And  such  policy  usually 
contains  a  clause  to  the  effect  that  no  agent  has  pow- 
er or  authority  to  waive  any  condition  appearing  in 
the  policy.  And  under  such  clause,  it  is  held  that  the 
delivery  of  the  policy  to  the  insured  is  sufficient  to 
put  him  on  notice  that  the  company  would  not  be 
bound  by  an  agent's  waiver79.  But  such  clause  in  the 
policy  forbidding  a  waiver  of  conditions  or  stipula- 
tions or  requiring  certain  acts  to  be  done  in  a  desig- 


79.     Thornton  v.  Travelers'  Ins.  Co.,  116  Ga.  121;    42   S.  E.  287;    94 

A.  S.  R.  99. 
Cleaver   v.   Traders'    Ins.    Co.,    65    Mich.    527;     32    N.   W.    660;     8 

A.  S.  R.  908. 
Lamberton  v.  Conn.  Fire  Ins.  Co.,  39  Minn.  129;    39  N.  W.  76 ;    1 

L.  R.  A.   272. 

Clevenger  v.  Mut.  Ins.  Co.,  2  N.  Dak.  114 ;  3  N.  W.  313. 
Dryer  v.  Security  Ins.  Co.,  94  la.  471 ;    62  N.  W.  798. 
Sprag^ie  v.  West  Ins.  Co.,  49  Mo.  App.  423. 
Catoir  v.  Am.  L.  Ins.  Co.,   33  N.  J.  L.  487. 
Quinlan  v.  Prov-Wash.  Ins.  Co.,  133  N.  T.  356;    31  N.  E.  31;    28 

A.  S.  R.  645. 

Union  Cent.  Co.  v.  Hook,  62  Oh.  bt.  256;    56  N.  E.  906. 
Hartford  Co.  v.  Small  66  Fed.  490 ;    14  C.  C.  A.  33  ;    30  U.  S.  App. 

337. 
Smith  v.  Niagara  Ins.  Co.,  60  Vt.  682;    15  Atl.   353;    6  A.  S.  R. 

144;    1   L.  R.  A.  216. 


260  THE  LAW  OF  WAIVER 

nated  manner  or  by  a  designated  agent  is  not  con- 
clusive and  by  no  means  final,  although  it  is  material 
and  controlling  in  the  absence  of  other  evidence. 

Sec.  265.  Any  condition  or  stipulation  named 
in  a  (policy,  however  material  it  may  be,  may  be 
waived  by  the  insurer  by  whomsoever  it  chooses  to 
act  and  in  any  manner  it  may  desire,  even  in  direct 
contravention  of  the  terms  of  the  policy.  A  differ- 
ent rule  would  work  hardships  in  many  instances, 
for  it  would  prevent  a  modification  of  contracts,  it 
would  prevent  the  insurer  from  changing  its  views 
and  line  of  conduct,  and  preclude  it  from  enlarging 
the  authority  conferred  upon  its  agents.  And,  as 
hereinafter  stated,  the  provision  in  a  policy  that 
neither  the  insurer  nor  its  agents  will  waive  any 
stipulation,  condition  or  forfeiture,  or  that  it  will  act 
only  in  a  certain  manner  or  by  only  certain  desig- 
nated agents,  cannot  be  held  as  limiting  the  power 
of  the  insurer  or  its  agents  to  act  in  whatever  man- 
ner they  see  fit  in  the  discharge  of  the  business  of 
an  insurer.  So,  the  ultimate  matter  to  determine  is 
not  whether  the  policy  contained  such  limitations  or 
restrictions,  but  whether  the  subsequent  acts  of  the 
insurer  or  its  agents  amounted  to  a  waiver  of  them ; 
and  if  so,  the  waiver  is  as  effective  as  if  it  had  been 
written  into  the  policy  itself80. 


80.     Ruthven  v.  Am.  Ins.  Co.,  102  la.  550 ;    71  N.  W.  574. 
Mut.  Assoc.  v.  Mills,  82  Fed.  508 ;    27  C.  C.  A.  212. 
Aetna  Co.  v.  Frierson,  114  Fed.  56 ;    51  C.  C.  A.  424. 
Knickerbocker  Co.  v.  Norton,  96  U.  S.  234 ;    24  L.  Ed.  689. 
Phoenix  Co.  v.  Doster,  106  U.  S.  34 ;    1  Sup.  Ct.  R.  18;    27  L.  Ed. 

65. 
Wilson  v.  Com.  Union  Co.,  61  S.  Car.  540;    29  S.  B.  245;    64  A. 

S.  R.  700. 

Keeler  v.  Niagara  Co.,  16  Wis.  523  ;    84  A.  D.  714. 
Dick  v.  Eq.  F.  Ins.  Co.,  92  Wis.  46 ;    65  N.  W.  742. 


INSURANCE  261 

Sec.  266.  Proceeding  on  the  theory  that  condi- 
tions, restrictions,  stipulations,  forfeitures  or  war- 
ranties in  insurance  contracts  may  be  waived,  it  be- 
comes material  to  determine  who  are  agents  of  an 
insurer  capable  of  causing  such  waiver.  The  usual 
classification  of  insurance  agents  as  local  and  gener- 
al is  not  sufficient  in  the  matter  under  consideration ; 
for  the  power  of  an  agent  in  this  regard  does  not  de- 
pend on  the  extent  of  the  territory  over  which  he 
may  have  dominion.  But  the  authority  of  an  agent 
must  depend  on  the  nature  of  the  business  intrusted 
to  him,  and  must  be  sufficient  to  fulfill  its  require- 
ments. The  criterion  is  not  what  powers  an  agent 
actually  had,  but  what  powers  the  insurer  held  him 
out  to  the  public  as  possessing81.  His  authority  can- 
not be  limited  by  private  instructions  never  brought 
to  the  attention  of  the  insured82 ;  and  if  he  have  pow- 


Coursin  v.  Perm.  Co.,  46  Pa.  St.  323. 

Schmurr  v.   State  Co.,  30   Oreg.   19;     46  Pac.   363. 

Ala.   St.  Co.  v.  Long,  etc.,   123  Ala.   667;    26   So.   655. 

Carrugl  v.  Atl.   Co.,   40   Ga.   135;     2   A.   R.   567. 

Lutz  v.  Anchor  Co.,  120  la.  136  ;  94  N.  W.  274  ;  98  A.  S.  R.  349. 

Am.,  Etc.  Co.  v.  MeLanathan,  11  Kans.  533. 

German  Co.  v.  Gray,   43  Kans.  497;    23   Pac.   637;     19  A.   S.  R. 

150;    8  L.  R.  A.   70. 
German-Am.  Co.  v.  Yellow,  etc.  Co.,  27  Ky.  L.  R.   57 ;    67  S.  W. 

19;    68   S.  W.   1081. 
German-Am.    Co.    v.    Humphrey,    62    Ark.    348;     35    S.    W.    428; 

54  A.  S.  R.  297. 

Tillis  v.  Liverpool  Co.,  46  Pla.  268  ;   35  So.  171. 
Excelsior  Co.  v.  Riddle,  91  Ind.  84. 

Hanover  Co.  v.  Dole,  20  Ind.  App.  333  ;    50  N.  E.  772. 
Citz.   Co.  v.   Stoddard,   197   111.   330;     99   111.   App.    469;     64   N.   B. 

355. 

Bouton  v.  Am.  Mut.  Co.,  25  Conn.  542. 
Hale  v.  Mechanics  Co.,  6  Gray  169;    66  A.  D.  410. 
Burdick  v.  Sec.  L.  Co.,  77  Mo.  App.  629. 
Steen  v.  Niagara  Co.,  89  N.  T.  315;    42  A.  R.  297. 
Phoenix  Co.  v.  Lodge,  41  Neb.  21;    59  N.  W.  752. 
Liverpool  Co.  v.  Sheffy,  71  Miss.  919 ;    16  So.  307. 

81.  Eclectic  Ins.  Co.  v.  Fahrenburg,   68  111.   463. 

82.  So.  Life  Ins.  Co.  v.  McCain,  96  U.  S.   84. 
Breckenridge  v.  Am.  Cent.  Co.,  87  Mo.  62. 


262  THE  LAW  OF  WAIVER 

er  to  issue  policies  he  may  bind  his  principal  by  his 
waivers  or  other  acts  done  in  the  furtherance  or  con- 
duct of  his  business83.  And  knowledge  brought  to 
the  attention  of  the  agent  is  imputed  to  the  princi- 
pal84, and  his  mistakes  are  attributed  to  the  insur- 
er85, as  are  misstatements  or  inaccuracies  in  the 
application.  These  propositions  are  true  even  where 
the  application  provides  that  the  insured  shall  be  re- 
sponsible for  the  acts  of  the  insurer's  agent86,  and 
even  though  it  provides  that  statements  therein  shall 
be  deemed  warranties87.  Frequently  ingenious  at- 
tempts have  been  made  'by  insurers  by  provisions  in 
their  applications  for  insurance  to  make  the  party 
forwarding  the  application  the  agent  of  the  insured 
and  thus  escape  liability  for  the  mistakes,  fraud  or 
misstatements  of  such  agent  and  be  relieved  from 
the  binding  effect  of  the  acts.  Such  provisions 
should  not  and  do  not  receive  countenance  from  the 
later  and  better  adjudications.  As  was  well  said  in 
one  case,  "The  ordinary  instructions  of  companies 
to  their  agents,  and  their  dealings  with  them,  are  too 
well  known  for  us  to  shut  our  eyes  to  the  manner  in 
which  their  work  is  carried  on.  This  is  but  a  form 
of  words  to  attempt  to  create  on  paper  an  agency 
which  in  fact  never  existed.  It  is  an  attempt  of  the 


83.  Phoenix  Oo.  v.  Spiers,  87  Ky.  286;  8  S.  W.  453. 
Ins.  Co.  v.  Hogue,  41  Kans.  524  ;    21  Pac.  641. 

84.  Campbell  v.  Mer.  &  F.  Co.,  37 'N.  H.  35. 

85.  Meadowcraft  v.  Standard  Co.,  61  Pa.  "91. 
Continental  Co.  v.  Munns,  120  Ind.  30;    22  N.  E.  78. 

86.  Hodgkins  v.  Mont.  Co.  Ins.  Co.,  34  Barb.  213. 
Kelly  v.  Troy  Co.,  3  Wis.  254. 

Winans  v.  Allemania  Co.,  38  Wis.  342. 
Roth  v.  City  Co.,  6  McLean  324  (U.  S.). 

87.  Continental  Co.  v.  Pearce,  39  Kans.  396;    18  Pac.  291;    7  A.  S. 

557. 


INSURANCE  263 

companies,  not  to  restrict  the  powers  of  their  own 
agents,  but  an  effort  to  do  away  with  that  relation 
altogether  by  mere  words,  and  to  make  him,  in  the 
same  manner,  the  agent  of  the  insured  when,  in  fact, 
that  relation  never  existed.  We  do  not  believe  that 
the  entire  nature  and  order  of  this  well  established 
relation  can  be  so  easily  subverted  by  this  ingenious 
device  of  words.  The  real  fact  as  it  existed  cannot 
be  hidden  in  this  manner;  much  less  can  it  be  de- 
stroyed and  something  that  did  not  in  reality  exist 
be  placed  in  its  stead.  The  substance  is  superior 
to  the  mere  drapery  of  words  with  which  one  party 
wishes  to  bring  into  existence  and  clothe  an  unreal 
authority."88  And  the  case  further  says  that  after 
receiving  the  premiums  and  benefits  from  an  insur- 
ance contract,  the  company  should  not  escape  liabil- 
ity by  questioning  the  acts  or  statements  of  its  own 
agent89. 


88.  Continental  Co.  v.  Pearce,  39  Kans.  396 ;    18  Pac.  291 ;    7  A.  S.  R. 

557.     Citing:    Sullivan  v.  Phenix  Co.,  34  Kans.  170;    8  Pac.  112. 
Kausal  v.  Minn.  Co.,  31  Minn.  17;    16  N.  W.  430;    47  A.  S.  R.  776. 
Ins.  Co.  v.  Wilkinson,  13  Wall.  222   (U.  S.). 
Prot.  Ins.  Co.  v.  Harraer,  2  Oh.  St.  452  ;    59  A.  D.  684. 
Sprague  v.  Holland  Co.,  69  N.  T.  128. 
Boetcher  v.  Hawkeye  Co.,  47  la.  253. 
Gans  v.  St.  Paul  Co.,  43  Wis.  108  ;    28  A.  R.  535. 
Iron  Works  v.  Phoenix  Co.,  25  Conn.  46,r>. 
Clark  v.  Union  Mut.  Co.,  40  N.  H.  333  ;    77  A.  D.  721. 
2  Wood,  Fire  Ins.  Sec.  385-8. 
May,  Insurance,  Sec.  140. 

89.  Id.,  citing: 

Lynchburg  Co.  v.  West,  76  Va.  575 ;    44  A.  R.  177. 

Higgins  v.  Phoenix  Co.,   74  N.  Y.   6. 

Eggleston  v.  Council  Bluffs  Co.,  65  la.   308;    21   N.  W.  851. 

Guardian  Co.  v.  Hogan,  80  111.  35;  22  A.  R.  180. 

Sherman  v.  Madison  Co.,  39  Wis.  104. 

Patten  v.  Merchants  Co.,  40  N.  H.  375. 

Breckenridge  v.  Am.  Cent.  Co.,  87  Mo.  63. 

Am.  Co.  v.  Mahone.  56  Miss.  180. 

Mass.  Ins.  Co.  v.  Robinson,  98  111.  324. 

Thomas  v.  Hartford  Co.,  20  Mp.  App.  150. 

Home  Ins.  Co.  v.  Lewis,  48  Tex.  622. 


264  THE  LAW  OF  WAIVES 

Sec.  267.    These  views  are  concurred  in  by  the 
Supreme  Court  of  the  United  States.    It  is  there 
said  that  insurance  companies  holding  out  to  the 
public  certain  parties  as  their  agents,  furnishing 
them    blanks    and    advertising    matter,  permitting 
them   to   countersign   and   deliver  policies,  urging 
them  on  to  increased  activities,  and  paying  them 
large  commissions,  should  not  be  released  from  re- 
sponsibility to  the  parties  with  whom  they  transacted 
business  for  the  acts  and  declarations  of  the  agent 
within  the  scope  of  his  employment.  "It  is  yet  true 
that  reports  of  judicial  decisions  are  filled  with  ef- 
forts of  these  companies,  by  their  counsel,  to  estab- 
lish the  doctrine  that  they  can  do  all  this,  and  yet 
limit  the  responsibility  of  these  agents  to  the  simple 
receipt  of  the  premium  and  delivery  of  the  policy; 
the  argument  being  that  as  to  all  other  acts  of  the 
agent  he  is  the  agent  of  the  assured.    This  proposi- 
tion is  not  without  support  in  some  of  the  earlier 
decisions  on  the  subject ;  and,  at  a  time  when  insur- 
ance companies  waited  for  parties  to  come  to  them 
to  seek  insurance,  or  to  forward  applications  on 
their  own  motion,  the  doctrine  had  a  reasonable 
foundation  to  rest  upon.     But  to  apply  such  a  doc- 
trine in  its  full  force  to  the  system  of  selling  policies 
through  agents,  which  we  have  described,  would  be 
a  delusion  and  a  snare,  leading,  as  it  has  done  in 
numerous  instances,  to  the  grossest  frauds  of  which 
the  insurance  companies  receive  the  benefit,  and  the 
parties  supposing  themselves  insured  are  the  vic- 
tims.    The  tendency  of  the  modern  decisions  in  this 
country  is  steadily  in  the  opposite  direction.    The 
powers  of  the  agent  are  prima  facie  co-extensive 
with  the  business  intrusted  to  his  care,  and  will  not 
be  narrowed  by  limitations  not  communicated  to  the 


INSURANCE  265 

person  with  whom  he  deals."90  An  apparent  lean- 
ing away  from  the  emphatic  statements  of  this  case 
was  manifested  by  the  same  court  in  a  later  decision. 
But  it  does  not  appear  that  the  court  abandoned  its 
earlier  position,  for  in  the  later  case  the  case  rested 
on  the  point  that  the  assured  had  signed  an  applica- 
tion, without  reading  it  and  it  subsequently  occurred 
that  it  contained  false  statements  unknown  to  the 
applicant.  And  the  court  held,  in  accordance  with 
established  rules  of  evidence,  that  parol  evidence 
could  not  be  admitted  to  vary  or  contradict  the  terms 
of  the  written  application,  and  more  particularly 
rested  the  case  on  the  fact  that  the  power  of  the 
agent  was  limited  by  a  statement  in  the  application 
which  was  brought  to  the  knowledge  of  the  insured91. 
The  great  mass  of  authority  is  as  above  stated,  and 
the  same  principle  is  set  forth  by  Judge  Cooley  as 
follows:  "It  cannot  be  tolerated  that  one  party 
shall  draft  the  contract  for  the  other,  and  receive 
the  consideration,  and  then  repudiate  the  contract 
on  the  ground  that  he  had  induced  the  other  party 
to  sign  an  untrue  representation,  which  was,  by  the 
very  terms  of  the  contract,  to  render  it  void  *  *  * 
When  an  agent,  who  at  the  time  and  place  is  the 
sole  representative  of  the  principal,  assumes  to  know 
what  the  principal  requires,  and  after  being  fur- 


so.     Union  Mut.  Co.  v.  Wilkinson,  80  U.  S.  13  Wall.  222  ;    20  L.  Ed.  617. 

Followed  in  Baker  v.  Home  Co.,  64  N.  Y.  650. 

Kausal  v.  Minn.  Co.,  31   Minn.   17  ;     16   N.  TV.    430  ;     47  A.  S.   R. 
776. 

Planters  Co.  v.  Myers,  55  Miss.  504;    30  A.  R.  526. 

Rissler  v.  Am.  Cent.  Co.,  150  Mo.  375 ;    51  S.  W.  757. 

Johnson  v.  Dakota  Co.,  1  N.  Dak.  179 ;    45  N.  W.  803. 

Kister  v.  Lebanon  Co.,  128  Pa.  St.  553 ;    18  Atl.  450  ;    15  A.  S.  R. 

699 ;  5  L,.  R.  A.  648. 
91.     N.  Y.  Life  Co.  v.  Fletcher,  117  U.  S.  529;    29  L.  Ed.  934. 


266  THE  LAW  OF  WAIVEB 

nished  all  the  facts,  drafts  a  paper  which  he  declares 
satisfactory,  induces  the  other  party  to  sign  it,  re- 
ceives and  retains  the  premium  moneys,  and  then  de- 
livers a  contract  which  the  other  party  is  led  to  be- 
lieve, gives  him  the  indemnity  for  which  he  paid  his 
money,  we  do  not  think  the  insurer  can  be  heard  in 
repudiation  of  the  indemnity,  on  the  ground  of  his 
agent's  unskillfulness,  carelessness  or  fraud."92 

Sec.  268.  So,  from  the  adjudications  this  prin- 
ciple is  deduced :  The  agent  taking  applications  for 
insurance,  using  the  company's  blanks,  forwarding 
the  applications,  delivering  policies  and  receiving 
premiums  is  the  agent  of  the  insurer  and  not  of  the 
insured,  and  the  insurer  is,  therefore,  liable  for  the 
acts  of  its  agent  in  the  apparent  scope  of  his  em- 
ployment, and  he  may  bind  it  by  his  acts,  represen- 
tations or  waivers. 

B.  WHO  ABE  AGENTS  WHO  MAY  WAIVE 
BIGHTS— Sec.  269.  The  extent  to  which  an  agent 
is  permitted  to  act  is  usually  the  test  by  which  to  de- 
termine whether  he  can  bind  his  principal  by  a  waiv- 
er of  conditions,  forfeitures  or  restrictions.  If  he  is 
permitted  by  the  insurer  to  solicit  insurance,  fill  in 
and  forward  applications,  receive  and  deliver,  or 
countersign  and  deliver  policies  and  collect  premi- 


92.     Aetna  Co.  v.  Olmstead,  21  Mich.  251;  4  A.  R.  483. 
Pac.  Mut.  Co.  v.  Snowden,   58  Fed.  342. 
N.  J.  Mut.  v.  Baker,  94  U.  S.  610;    24  L,.  Ed.  268. 
Eames  v.  Home  Co.,  94  U.  S.  621 ;    24  L.  Ed.  298. 
Continental  Co.  v.  Chamberlain,  132  U.  S.  304 ;    33  L.  Ed.  341. 
Knickerbocker  Co.  v.  Trefz,  104  U.  S.  197 ;    26  L.  Ed.  708. 
American  Co.  v.  Mahone,  88  U.  S.  21;    21  Wall.  152;    22  L.  Ed. 

593. 
Equitable  Co.  v.  Hazlewood,   75  Tex.  338 ;    12   S.  W.   621 ;    7  L. 

R.  A.  217. 
Flynn  v.  Equitable  Co.,  78  N.  Y.  568;    34  A.  R.  561. 


INSURANCE  267 

urns  therefor,  and  thus  attend  to  the  business  of  his 
employer,  such  employer  is  bound  by  his  waivers  to 
the  same  extent  as  if  the  principal  were  acting.  The 
tendency  of  modern  authorities  is  against  making  re- 
strictions in  the  policy  upon  an  agent's  authority 
conclusive  upon  the  assured,  and  that  the  company  or 
any  agent  with  general  or  unlimited  powers,  clothed 
with  an  actual  or  apparent  authorization,  may  either 
orally  or  in  writing,  waive  any  written  or  printed 
condition  in  the  policy,  notwithstanding  such  restric- 
tions, and  many  cases  apply  this  rule,  even  though 
the  policy  provides  that  a  distinct,  specific  agreement 
shall  be  endorsed  thereon,  or  otherwise  prescribes 
a  particular  mode  of  waiver  or  that  only  certain  per- 
sons may  waive,  and  there  would  'be  no  valid  reason 
why,  if  the  agent  could  waive  the  restrictions  in  the 
first  case,  he  may  not  in  the  latter ;  for  such  restric- 
tions are  declared  to  be  ineffectual  to  limit  the  legal 
capacity  of  the  company  to  bind  itself  by  waiving 
conditions  of  a  policy  through  an  agent  acting  within 
the  real  or  apparent  scope  of  his  employment93. 

'Sec.  270.  Attempts  have  frequently  been  made 
by  the  courts  to  create  a  distinction  between  the  pow- 
ers of  a  general  and  a  local  agent  in  applying  the 
principles  under  consideration.  But  the  difficulty 
arising  in  such  case  is  to  arrive  at  a  proper  defini- 
tion of  the  terms  general  and  local.  It  is  customary 
to  speak  of  a  local  agent  as  one  whose  district  of 
operations  is  circumscribed,  and  a  general  agent  as 
one  who  has  a  wider  field  or  territory  under  his  sup- 
ervision. And  yet,  an  agent  may  be  restricted  to 


93.     I  Joyce,   Insurance,   439. 


268  THE  LAW  OF  WAIVEB 

work  in  only  one  small  town,  and  his  powers  still  be 
as  great  as  if  he  covered  the  whole  state.  And  one  us- 
ually denominated  a  general  agent  may  be  absolute- 
ly denied  the  power  to  waive  conditions,  stipulations 
or  forfeitures,  while  he  who  is  called  a  local  agent 
may  have  such  power  absolutely.  And  the  mere  fact 
of  having  a  high  title  in  an  insurance  company  should 
not  and  has  been  held  not  to  make  any  difference 
where  the  prohibition  in  a  policy  was  against  waiv- 
ers by  all  agents94.  This,  however,  has  been  decided 
differently,  in  other  states,  perhaps  under  facts 
which  were  not  altogether  similar,  where  it  was  held 
that  the  president,  vice-president  and  secretary95, 
the  assistant-secretary,  superintendent  and  general 
manager96,  were  not  to  be  included  in  the  same  cate- 
gory as  other  agents,  and  that  they  could  bind  the 
company  by  their  acts  irrespective  of  the  provisions 
of  the  policy.  No  forceful  reason  presents  itself  for 
such  a  classification  and  differentiation  of  agents. 
The  classification  should  be  based  on  the  character  of 
the  duties  performed  by  the  agent  whose  acts  are  in 
question.  The  highest  official  in  an  insurance  com- 
pany may  never  have  performed  a  single  act  in  the 
real  transaction  of  the  company's  business;  and  it 
would  be  absurd  to  say  that  he  could  step  in  in  a 
particular  case  and  authorize  acts  in  direct  contra- 
vention of  the  terms  of  the  policy,  when  the  public 
knew  that  it  was  not  customary  for  him  to  exercise 


94.     O'Leary  v.  Mer.  M.  Co.,  100  la.  173 ;    69  N.  W.  420 ;    62  A.  S.  R. 

555. 

Taylor  v.  State  Co.,  98  la.  521 ;  67  N.  W.  577  ;  60  A.  S.  R.  210. 
<J5.  Hastings  v.  Brooklyn  Ins.  Co.,  138  N.  Y.  473  ;  34  N.  E.  289. 
96.  Bankers  Assoc.  v.  Stapp,  77  Tex.  517;  14  S.  W.  168;  19  A.  S.  R. 

772. 
Piedmont  Co.  v.  McLean,  31  Gratt.  517   (Va.). 


INSURANCE  269 

such  powers,  and  the  company  had  never  actually  or 
impliedly  given  him  authority  therefor.  And  on  the 
other  hand,  an  agent  restricted  to  a  small  district 
may  have  been  so  held  out  by  the  company,  and  it 
may  have  so  ratified  his  acts  as  to  have  endowed  him 
with  implied  power  to  waive  any  provision  or  to 
transmute  the  very  terms  of  the  policy  itself.  It 
is  true  that  great  inharmony  as  to  this  subject  is 
prevalent  among  the  authorities.  But  the  true  rule 
to  be  deduced  from  a  consideration  of  the  cases  is 
this :  If  an  agent  has  authority  to  take  applications, 
countersign  and  deliver  policies,  collect  premiums, 
and  to  act  generally  for  the  insured  in  making  con- 
tracts, and  his  acts  and  waivers  have  been  ratified 
and  acquiesced  in  by  the  insurer,  his  waivers  of  con- 
ditions and  stipulations  will  be  effective  and  may  be 
made  orally  notwithstanding  an  express  provision 
in  the  policy  that  no  waiver  should  be  made  unless 
endorsed  on  the  policy97;  or,  as  has  been  said,  the 


97.     Grubbs  v.  N.   Car.  Co.,   108   N.  Car.   472;     13   S.  E.   236;    23  A. 

S.  R.  62. 

Wood  on  Fire  Insurance,  Sec.  391. 
Fishbeck  v.   Phoenix   Co.,   54   Cal.   422. 
Miner  v.  Phoenix  Co.,   27  Wis.   693;     9  A.  R.   479. 
Phoenix  Co.  v.  Spiers,  87  Ky.  285  ;    8  S.  W.  453. 
Kitchen  v.  Hartford  Co.,  57  Mich.  135;    23  N.  W.  616 ;    68  A.  R. 

344. 

Shearman  v.  Niagara  Co.,  46  N.  T.  526  ;    7  A.  R.  880. 
McFarland  v.  Kittaning  Co.,    134  Pa.   St.   590;     19  Atl.   796;    19 

A.  S.  R.  728. 

Phenix  Co.  v.  Bowdre,  67  Miss.  620;    7  So.  596;    19  A.  S.  R.  326. 
State  Co.  v.  Latourette,  71  Ark.  242  ;    74  S.  W.  300 ;    100  A.  S.  R. 

63. 

Life  Ins.  Co.  v.  Fallow,  110  Tenn.  720;    77  S.  W.  937. 
Woolper  v.  Franklin  Co.,  42  W.  Va.  647  ;    26  S.  E.  521. 
Standard  Co.  v.  Friedenthal,  1  Colo.  App.  5 ;    27  Pac.  88. 
Continental  Co.  v.  Ruckman,  127  111.  364;    20  N.  E.  77;    11  A.  8. 

R.  121. 

National  Co.   v.  Barnes,   41   Kans.    161  ;    21   Pac.    165. 
Springfield  Laundry  v.  Traders  Co.,  151  Mo.  90;    52  S.  W.  238; 
74  A.  S.  R.  521. 


270  THE  LAW  OF  WAIVER 

powers  of  an  agent  are  prima  facie  co-extensive  with 
the  apparent  authority  given  him,  and  persons  deal- 
ing with  him  may  judge  of  their  extent  from  the 
nature  of  the  business  intrusted  to  his  care*8. 

Sec.  271.  Of  course  it  must  be  at  all  times  un- 
derstood that  insurance  companies  have  the  right  to 
limit  the  acts  which  may  toe  done  by  their  agents  the 
same  as  other  principals  have,  and  that  such  limi- 
tations, when  brought  to  the  actual  knowledge  of  the 
insured,  are  binding  upon  him,  provided  the  general 
powers  generally  exercised  by  such  agent  were  not 
inconsistent  with  such  limitation  and  the  fact  was 
known  by  the  insurer  or,  if  not  known,  its  ignorance 
was  the  result  only  of  fraud  or  gross  inattention  to 
business".  But  actual  notice  of  limitations  of  an 
agent's  authority  must  in  all  cases  be  given  to  the  as- 
sured in  time,  for  a  person  contemplating  insurance 
is  entitled  in  dealing  with  an  agent  to  assume  that  he 
has  full  powers  respecting  the  matters  in  which  he 
is  acting  in  the  steps  preliminary  to  the  insurance 
and  in  issuing  the  policy,  and  if  the  authority  which 
the  agent  is  otherwise  deemed  to  possess  has  in  fact 
been  limited,  the  limitation  must  be  brought  home  to 
the  insured100. 


>8.     Wood,  Fire  Insurance,  500. 

Beal  v.  Park  Ins.   Co,   16  Wis.    241;     82  A.   D.   719. 
•9.     Parker  v.  Rochester  Co.,   162  Mass.   479;    39  N.  E.  179. 
Hunt  v.  State  Co..  66  Neb.  121 ;    92  N.  W.  921. 
Russell   v.   Prudential   Co.,    176    N.   Y.    178;     68    N.    E.    252;     98 

A.   S.  R.   656. 
No.  As.  Co.  v.  Bld'g.  Assoc.,  183  U.  S.  308;   22  Sup.  Ct.  R.  133; 

46  L.  Ed.  213. 
109.     Farnham  v.  Phoenix  Co.,  83  Cal.  246;    23  Pac.  869;    17  A.  S.  R. 

233. 

Hoge  v.  Dwelling:  H.  Co.,  138  Pa.  St.  66  ;  20  Atl.  939. 
Howard  Co.  v.  Owen's  Adm.,  14  Ky.  L.  R.  881 ;    21  S.  W.  1037. 
Hahn  v.  Guardian  Co.,  23  Oreg.  576;    32  Pac.  683;    37  A.  S.  R, 
709. 


INSURANCE  271 

0.  CLERKS :— Sec.  272.  According  to  the  or- 
dinary course  of  business,  insurance  agents  frequent- 
ly employ  clerks  to  assist  them.  In  many  cases  they 
could  not  transact  their  business  if  obliged  to  attend 
to  all  details  in  person.  And  these  clerks  can  bind 
their  principals  in  any  of  the  business  they  are  au- 
thorized to  transact.  An  insurance  agent  can  author- 
ize his  clerk  to  contract  for  risks,  to  deliver  policies, 
to  collect  premiums,  and  to  take  payment  for  pre- 
miums in  cash  or  securities,  and  to  give  credit  for 
premiums  or  to  demand  cash ;  and  the  act  of  the  clerk 
is  in  all  such  cases  the  act  of  the  agent,  and  binds 
the  company  just  as  effectually  as  if  it  had  been 
done  by  the  agent  in  person.  The  maxim  of  dele- 
gatus  non  potest  delegare  does  not  apply  in  such  a 
case1.  So,  a  clerk  may  waive  conditions  and  provi- 
sions in  an  insurance  policy  to  the  same  extent  as  the 
agent,  his  employer,  could  do2.  Soliciting  insurance 
and  bringing  the  applications  to  the  agents  who  fin- 
ally pass  upon  them  and  determine  whether  or  not 
to  issue  a  policy,  makes  the  solicitor  the  clerk  of  the 
agents  and  not  an  insurance  broker ;  therefore,  oral 
notice  to  such  clerk  of  additional  insurance  contrary 
to  the  terms  of  a  policy  was.  notice  to  the  company3. 


Liverpool  Co.  v.  Richardson,  11  Okla.  585  ;    69  Pac.  938. 

Royal  Neighbors  v.  Bowman,  75  111.  App.  566. 

Gal.  Co.  v.  Gracey,  15  Colo.  70;    24  Pac.  577;    22  A.  S.  R.  376. 

Bodlne  v.  Exchange  Co.,  51  N.  T.  117 ;    10  A.  R.  566,  citing: 

Story  on  Agency,  Sec.  14. 

Deitz  v.  Providence  Co.,  33  W.  Va.  626;    11  S.  B.  50;    25  A.  S.  R. 

908. 

May  on  Insurance,  3d  Ed.  Sees.  154,  154A. 
2  Wood  on  Insurance,  2d  Ed.  Sec.  433. 
Eclectic  Co.  v.  Fahrenburg,   68  111.  463. 
Llngenfelter  v.  Phoenix  Co.,  19  Mo.  App.  252. 
Arff  v.  Star  Co.,  125  N.  Y.  57;    25  N.  E.  1073;    21  A.  8.  R.  721; 

10  L.  R.  A.  609. 

McEven  v.  Montgomery  Mut.,  5  Hill  101. 
v.  C«aese9  Co.  14  N.  Y.  421. 


272  THE  LAW  OP  WAIVES 

And  the  principles  applying  to  clerks  are  equally  ap- 
plicable to  sub-agents,  and  the  acts  of  the  latter  are 
the  acts  of  the  agent  and,  therefore,  the  acts  of  the 
company4.  So,  if  a  sub-agent,  who  has  been  correct- 
ly informed,  makes  a  mistake  in  filling  in  an  applica- 
tion, the  company  will  be  bound5.  And  it  is  said  that 
a  company  is  liable  for  the  acts  of  a  sub-agent 
whether  it  knew  of  his  employment  or  not  if  it  re- 
ceived the  benefits  of  his  labor6.  And  even  where  a 
sub-agent  countersigns  a  policy  for  the  agent,  the 
company  is  bound  if,  after  a  knowledge  of  all  the 
facts,  the  agent  ratifies  the  act  of  the  sub-agent  by 
delivering  the  policy7. 

Sec.  273.  The  courts  are  not  wholly  harmonious 
as  to  the  above  principles.  In  one  case  it  was  held 
that  a  clerk  employed  by  an  insurance  agent,  without 
the  knowledge  of  the  company,  and  authorized  by  the 
agent  to  fill  out  and  issue  policies,  sign  the  agent's 
name,  and  indorse  the  rate  of  insurance  on  policies, 
was  not  the  agent  of  the  company,  and  though  the 
agent  had  power  to  waive  any  forfeiture  of  the  pol- 
icy for  additional  insurance,  effected  without  the 
consent  of  the  company,  he  could  not  delegate  his 
authority  to  his  clerk,  and  hence  that  a  waiver  by 
such  clerk  could  not  be  imputed  to  the  company8. 
And  several  other  courts  lean  toward  this  reason- 
ing on  the  well-established  principle  of  agency  that 


4.  Grubbs  v.  N.  Car.  Co..  108  N.  Car.  472;    13  S.  E.  236;    23  A.  S. 

R.  62. 

5.  Langdon  v.  Union  Co.,  14  Fed.  272. 

6.  Continental  Co.  v.   Ruckman,   127   111.   364;    20  N.  E.   77;     11   A. 

S.  R.  121. 

7.  Grady  v.  Am.  Cent.  Co.,  60  Mo.  123. 

4.     Waldman  v.  No.  British  Co..  91  Ala.  170;  8  So.  666;  24  A.  S.  R. 
883. 


INSURANCE  273 

an  agent  cannot  delegate  his  authority  to  another. 

But  the  decided  weight  of  authority  is  on  the 
side  of  the  doctrine  first  above  announced.  And 
familiarity  with  the  methods  in  which  the  insurance 
business  is  carried  on  will  suggest  the  good  sense  and 
reason  of  the  doctrine.  Insurance  agents  usually 
solicit  and  transact  insurance  business  through 
clerks,  sub-agents  and  assistants,  and  the  more  cap- 
able the  agent  is,  and  the  greater  the  volume  of  his 
business,  the  greater  will  be  his  need  of  clerical  as- 
sistance and  sub-agents ;  and  in  case  of  his  employ- 
ment of  such,  promotion  of  the  insurance  business 
and  its  most  convenient  dispatch,  as  well  as  justice 
and  good  faith  with  those  dealing  with  insurance 
companies  through  such  agencies,  demand  that  the 
insurers  be  held  liable  for  the  acts  of  the  clerks  and 
assistants9. 

2.     WHAT    MAY    BE    WAIVED;    AND    WHAT    AMOUNTS 
TO  A  WAIVER: 

A.  ACTS  PROHIBITED  BY  CHARTER:— 
Sec.  274.  The  act  of  incorporation  of  an  insurance 
company  is  an  enabling  act ;  it  gives  the  corporation 
all  the  power  it  possesses;  it  enables  it  to  contract, 
and  when  it  prescribes  to  it  a  form  of  contracting  it 
must  observe  that  mode  or  the  instrument  will  no 
more  create  a  contract  than  if  the  body  had  never 


Bennett  v.  Council  Bluffs  Co.,  70  la.  600;  31  N.  W.  948. 
Fitzgerald  v.   Hartford  Co.,   56  Conn.   116 ;    13  Atl.    673 ;    17  Atl. 

411 ;  7  A.  S.  R.  288. 

Steele  v.  German  Co.,  93  Mich.  81 ;  53  N.  W.  514 ;  18  L.  R.  A.  85. 
Kq.   Soc.   v.   Brobst.   18  Neb.   526;    26   N.  W.    204. 
Heath  v.  Springfield  Co..  58  N.  H.  414. 
Carpenter  v.  Ger-Am.  Co..   135  N.  Y.  298  ;   31  N.  E.  1015. 
Hartford  Co.  v.  Josey.   6  Tex.  Civ.  App.   290  ;   25  S.  W.  685. 
Goode  v.  Ga.  Home  Co..   92  Va.  392;   23  S.  E.  744;   53  A.  S.   R. 

817;  30  I*   R.  A.  842. 


274  THE  LAW  OF  WAIVER 

been  incorporated10.  Under  such  authority  it  has 
been  held  that  prohibitions  in  a  charter  or  the  by- 
laws of  an  insurance  company  cannot  be  waived  by 
its  officers  or  agents11,  the  cases  going  on  the  theory 
that  provisions  in  such  charters  or  by-laws  are  semi- 
public  in  that  they  are  designed  for  the  prevention 
of  over-insurance  and  other  evils  to  which  the  pub- 
lic might  be  subjected  as  well  as  for  the  protection  of 
the  insurer  itself12.  But  no  good  reason  presents 
itself  for  permitting  its  officers  and  agents  to  forego 
other  rights  and  benefits  pertaining  to  the  business 
and  yet  denying  their  power  to  waive  any  of  the  pro- 
visions of  its  charter  or  by-laws  where  the  interests 
of  an  innocent  individual  are  involved. 

Sec.  275.  Such  officers  and  agents  know  the 
extent  of  their  powers  and  the  limitations  of  author- 
ity given  by  the  charter  and  by-laws  of  the  company, 
and  this  is  not  true  of  one  per  cent,  of  those  who  are 
insured  by  such  comany  and  pay  their  premiums  to 
it.  And  to  say  that  while  holding  this  knowledge 
exclusively  such  insurer  can  deliberately  act  con- 
trary to  the  terms  of  its  charter  or  by-laws  while  as- 
suming to  act  in  accordance  with  them  or  at  least  in- 
ducing those  dealing  with  it  to  believe  that  its  rights 
»o  disregarded  would  not  be  insisted  upon  and  then 
after  action  brought  against  it,  to  hide  behind  a 
cloak  of  immunity  from  liability  theretofore  un- 
known to  the  insured,  occurs  to  us  to  be  legalizing 
fraud  and  unfair  dealing.  And  it  has  been  held  that 


10.  Head  v.  Providence  Co.,  2  Cranch  127   (U.  S.). 

11.  Hale  v.  Mech.  Co.,  6  Gray  169;   66  A.  D.   410. 
Lolhner  v.  Home  Co..  17  Mo.   247. 

Stark  County  Co  v.  Hurd.   19   Oh.    149. 
18.     Couch  *.  City  Co.,  38  Conn.  181 ;  9  A,  R.  375. 


INSURANCE  275 

the  violation  of  its  charter  is  a  matter  to  be  settled 
between  the  insurer  and  those  who  gave  it  its  char- 
ter, but  it  cannot  set  up  its  own  misconduct  or  dere- 
liction in  defense  against  the  claim  of  the  insured 
for  indemnity,  as  by  showing  that  in  insuring  to  the 
stipulated  amount  it  has  infringed  one  of  its  own  by- 
laws13. So,  an  estimate  of  the  valuation  made  by 
the  agent  of  the  insurer  or  by  him  and  the  insured 
together  is  controlling,  regardless  of  any  contrary 
provision  of  the  by-laws  of  the  company14. 

Sec.  276.  And  a  policy  of  insurance  is  not  void 
because  the  risk  was  taken  in  violation  of  a  by-law 
providing  that  certain  risks  should  not  be  taken  un- 
less approved  by  a  special  committee,  the  policy 
having  been  issued  by  a  duly-appointed  agent  of  the 
company  upon  full  knowledge  of  all  the  facts  mate- 
rial to  the  risk15.  Another  case  was  a  suit  on  a  pre- 
mium note.  The  defense  was  that  the  note  and  pol- 
icy were  void  because  the  risk  had  been  taken  in  vio- 
lation of  the  company's  by-laws ;  but  it  was  held  that 
this  did  not  render  void  the  policy  nor  the  note  given 
in  consideration  of  it16.  And  the  court  of  another 
state  said :  The  first  objection  made  by  the  defend- 
ants to  the  plaintiff's  right  to  recover  is  that  the 
plaintiff  did  not  give  notice  of  the  loss  in  the  manner 
and  within  the  time  required  by  the  by-laws  of  the 
company.  The  defendants  were,  in  fact,  notified  of 
the  loss  the  dav  after  the  fire  and  in  the  manner  stat- 


II.     Hoxsie  v.  Providence  Co.,   6   R.   I.   517. 

Fuller  v.  Boston  Co..   4  Met.    206    (Mass.). 
Cumberland  v.    Schnell,    29    Pa.    St.   31. 

14.  Wilbur  v.  N.  Eng.  Co..  31  Me.   219. 

15.  Merchants  Co.  v.  Curran.  45  Mo.  142 ;  100  A.  D.  3«1. 

16.  Union  Co.  v.  Keyser,  32  N.  H.  313  :  64  A.  D.  375. 


THE  LAW  OF  WAIVBB 


ed  in  the  report.  Almost  a  week  after  this  notice  the 
president  of  the  defendants  came  to  Fairhaven  and 
New  Bedford  and  went  to  the  ruins.  The  object  of 
this  visit  of  the  president,  no  doubt,  was  to  make  him- 
self fully  acquainted  with  all  the  facts  and  circum- 
stances of  the  case.  After  the  president  had  thup 
been  to  the  ruins,  it  would  seem,  as  the  case  finds, 
that  the  defendants  declined  to  pay  the  loss  altogeth- 
er. The  president,  without  doubt,  obtained  all  the 
information  he  desired ;  and  further  notice  to  the  de- 
fendants, therefore,  would  have  been  wholly  unim- 
portant and  useless  to  them.  The  refusal  to  pay  the 
loss  was  not  put  upon  the  ground  of  any  defect  or 
insufficiency  in  the  notice.  No  objection  was  taken 
at  that  time  to  the  form  of  the  notice ;  no  further  or 
more  particular  notice  was  requested;  but  the  de- 
fendants declined  to  pay  the  loss  altogether;  and 
within  thirty  days  after  the  loss,  and  of  course  be- 
fore the  expiration  of  the  time  allowed  to  the  plain- 
tiff to  give  the  notice.  This  conduct  on  the  part  of 
the  defendants,  upon  any  sound  and  just  principle 
of  fair  dealing,  must  be  regarded  as  a  waiver  of  any 
further  or  different  notice.  The  principle  of  waiver 
is  a  recognized  and  well-settled  principle,  and  ap- 
plies with  much  force  to  the  present  case17. 

B.      CONDITIONS: 

1.  BREACH  OF  CONDITION  PRIOR  TO 
DELIVERY  OF  POLICY.  Sec.  277.  The  issuance 
of  a  policy  by  an  insurance  company  with  full  knowl- 
edge of  all  the  facts  affecting  its  validity,  is  tanta- 
mount to  an  assertion  that  the  policy  is  valid  at  the 


17.     Clark  v.  N.  E.  Mut.  Co.,  6  Cush.  342   (Mass.)  ;  53  A.  D.  44. 


INSURANCE  277 

time  of  its  delivery  and  is  a  waiver  of  any  known 
ground  of  invalidity.  From  such  conduct  the  insured 
might  fairly  infer,  and  he  has  a  right  to  infer  that  he 
is  protected.  If  he  did  not  so  infer,  it  is  reasonable 
to  suppose  that  he  would  protect  himself  by  procur- 
ing other  insurance.  It  would  not  be  consistent  with 
fair  dealing  and  honesty  for  the  company  to  under- 
take to  avoid  its  policy  under  such  circumstances 
when  the  assured  has  rested  in  the  belief  that  he  was 
protected,  until  his  property  was  destroyed,  and 
when  that  belief  was  the  result  of  its  conduct18.  It  is 
not  easy  to  perceive  why  an  insurance  company,  by 
reason  of  the  formal  words  and  clauses  inserted  in 
its  policy,  intended  to  meet  broad  classes  of  contin- 
gencies, should  ever  be  allowed  to  avoid  liability  on 
the  ground  that  facts,  of  which  the  company  had  full 
knowledge  at  the  time  of  issuing  the  policy,  were 
then  not  in  accordance  with  the  formal  words  of  the 
contract  or  some  of  its  multifarious  conditions.  If 
such  facts  are  to  be  held  a  breach  of  such  a  clause, 
they  are  a  breach  eo  instanti  of  the  making  of  the 
contract  and  are  so  known  to  the  company  as  well  as 
to  the  insured.  And  to  allow  the  company  to  take 
the  premium  without  assuming  the  risk  would  be  to 
encourage  a  fraud.  It  would,  as  a  legal  principle,  be 
equivalent  to  holding  that  the  warranty  of  the 
soundness  of  a  horse  is  a  warranty  that  he  has  four 
legs  when  one  of  them  has  been  cut  off19. 

Sec.  278.  An  examination  of  the  authorities 
discloses  greater  harmony  on  this  branch  of  the  law 
of  waiver  as  applied  to  insurance  contracts  than  any 


18.  Dwelllng-House  Co  v.  Brodie,   62  Ark.   11 ;    11  S.  W.   1016  ;   4  L. 

R.  A.  458. 

19.  Birdwell  v.  Northwestern  Co..  24  N.  Y.  302. 


278  THE  LAW  OF  WAIVER. 

ether  phase.  And,  indeed,  there  should  be  no  vari- 
ety of  opinion  among  the  courts  on  the  matter  under 
discussion.  Only  the  simple  and  elementary  prin- 
ciples of  waiver  are  involved,  being  the  voluntary 
surrender  or  foregoing  of  a  right  fully  known  to  him 
possessing  it.  And,  once  shown  that  an  insurer  had  a 
right  to  insist  upon  some  condition,  warranty  or 
stipulation  at  the  time  of  delivering  its  policy,  but 
with  full  knowledge  of  the  facts  remained  silent  or 
by  any  sort  of  conduct  failed  to  claim  such  right, 
then  it  will  be  held  to  have  voluntarily  relinquished, 
abandoned  or  waived  it  and  cannot  be  heard  later  to 
complain20. 

(a)  CONDITION  AS  TO  TITLE:— Sec.  279. 
Remembering  that  the  common  rules  of  agency  are 
applicable  to  insurance  companies  and  those  employ- 
ed by  them  to  solicit  and  perfect  contracts  of  insur- 
ance, it  follows  that  knowledge  of  the  agent  of  facts 


20.     Anderson  v.   Manchester   Co.,    59   Minn.   182;    63   N.  W.   241;   50 

A.  S.  R.  400  ;  28  L.  R.  A.  609. 

Imp.  M.  Co.  v.  Mich.  Co.,  122  Mich.  256  ;  80  N.  W.  1088. 
Triple  Link  v.  Williams,  121  Aia.  138;  26  So.  19;  77  A.  S.  R.  34. 
Bebee  v.  Hartford  Co..  25  Conn.  51 ;  65  A.  D.  553. 
Davis  v.  Phoenix  Co..  11  Cal.  409 ;   43  Pac.  1115. 
Comba  v.  Hannibal  Co.,  43  Mo.  148. 
Phoenix  Co.  v.  Raddin.  120  U.  S.  196;  30  L.  Ed.  648. 
Wood  v.  American   Co.,   149   N.  T.   382;    78   Hun  109;   29   N.   T. 

Supp,  250;  44  N.  E.  80;  52  A.  S.  R.  733. 
Patten  v.  Merchants  Co..  40  N.  H.  375. 
Hadley  v,  N.  H.  Co..  55  N.  H.  110. 
Gans  v.  St.  Paul.,  43  Wis.  108;   28  A.  R.  535. 
Eggleston  v.  Council  Bluffs  Co.,  65  la.  308 ;  21  N.  W.  652. 
Georgia  Home  Co.  v.  Kinnier.  28  Gratt.   88    (Va.). 
Niagara  Co.  v.  Johnson.  4  Kans.  ADP.  16;  45  Pac.  789. 
Commonwealth  v.  Huntzinger.  98  Pa.  St.  41. 
Worachek  v.  New  Denmark  Co..  102  Wis.  88  :  78  N.  W.  165. 
No.  Assur.  Co.  v.  Grand  View  Assoc.   101  Fed.  77  ;   41   C.  C.  A. 

207. 

Security  Co.  v.  Tarpey,  182  III  52;  54  N.  E.  1041. 
Hartford  Co.  v.  Post.  25  Tex.  Civ.  App.  428 ;  62  S.  W.  140. 
Aetna  Co.  v.  Olmstead,  21  Mich.  246;  4  A.  R.  483. 


INSURANCE  275 

existing  at  the  time  of  the  issuance  of  a  policy  of  in- 
surance which  would  render  it  void  is  knowledge  of 
the  company.  Therefore,  even  though  there  is  a  stip- 
ulation in  the  policy  prohibiting  a  waiver  of  condi- 
tions therein  other  than  by  a  written  endorsement 
on  such  policy,  if  an  agent  delivers  the  policy  and  re- 
ceives the  premium  therefor  with  knowledge  of  a 
breach  of  a  condition  in  the  policy  respecting  the  sole 
and  unconditional  ownership  of  the  property,  such 
condition,  or  the  breach  thereof  is  thereby  waived. 
And  this  is  true  notwithstanding  there  is  a  provi- 
sion in  the  policy  prohibiting  an  agent  from  waiving 
any  of  its  conditions  in  any  manner  other  than  by 
writing  indorsed  thereon21.  So,  the  defense  that  the 
insured  was  not  the  sole  and  unconditional  owner  of 
the  property  cannot  be  made  where  it  appears  that 
the  agent  of  the  insurer  was  informed  that  the  true 
ownership  of  the  property  was  in  another  than  the 
insured22.  Notice  to  the  insurance  agent  that  the  in- 
sured had  only  a  bond  for  title  is  notice  to  the  in- 
surer of  the  condition  of  the  title,  and  the  subsequent 
delivery  by  him  of  a  policy  to  the  insured  is  a  waiv- 
er of  any  breach  of  condition  in  such  policy  as  to 
title113.  And  if  the  insured  states  in  his  application 
that  he  holds  title  by  "deed",  such  statement  is  suf- 


21.  Santa  Clara  etc.  v.  N.  W.  Nat.  Co..  98  Wis.  257;  73  N.  W.  767; 

67  A.   S.   R.   805. 

McMurray  v.  Capital  Co.,  87  la.  453  ;   54  N.  W.  354. 
Breedlove  v.  Norwich  Soc.   124  Cal.  164;  56  Pac.  770. 
Batema-n  v.  Lumbermen's  Co.,  189  Pa.   St.  465  ;   42  Atl.   184. 
Dupuy  v.  Del  Co.,  63  Fed.  680. 

22.  Graham  v.  Fire  Ins.  Co.,  48  S.  Car.  195;  26  S.  E.  323;  59  A.  S. 

R.  707. 

State  Mut.  Co.  v.  Da  Tourotte.   71  Ark.  242;   74  S.  W.   300;    10» 
A.   S.  R.   63. 

23.  Germania  Co.  v.  Ashby,  112  Ky.  303;  65  S.  W.  611;  99  A.  S.  R. 

295. 


280  THE  LAW  OF  WAIVBB 

ficient  to  put  the  insurer  upon  inquiry  and  it  cannot 
defend  an  action  on  the  policy  where  the  insured  did 
not  have  title  in  fee  as  required  by  the  policy24. 

Sec.  280.  Where  the  insured  told  the  agent  of 
the  insurer  that  he  owned  the  building  insured  but 
that  it  was  standing  on  leased  land  yet  the  agent  is- 
sued and  delivered  the  policy,  such  was  held  a  waiver 
of  the  condition  in  the  policy  that  it  should  be  void 
if  the  insured  did  not  own  a  fee  simple  title  to  the 
land  upon  which  the  building  was  standing25.  So, 
the  mere  failure  or  neglect  of  the  insured  to  make 
known,  without  inquiry,  facts  relating  to  the  title 
which  the  insurer  might  deem  material,  is  not  a 
breach  of  a  condition  of  the  policy  relating  to  the 
title  or  liens  on  same,  'because  the  assured  is  entitled 
to  assume  that  the  insurer  will  make  proper  inquiry 
afoout  all  matters  it  deems  material  to  the  risk,  and 
that  it  waives  knowledge  as  to  all  other  matters,  ex- 
cept, possibly,  in  reference  to  extraordinary  or  un- 
usual circumstances  within  the  knowledge  of  the  as- 
sured ;  but  of  which  there  is  nothing  to  put  the  in- 
surer upon  inquiry26.  This  proposition,  however, 
has  been  denied27. 


24.  Clawson  v.  Citizens  Co..  121  Mich.  591 ;   80  N.  W.  673  ;   80  A.  S. 

R.    538. 

25.  Johnson  v.  Aetna  Co..   123   Ga.   404;   51   S.  E.   339;   107  A.   S.  R. 
92,   overruling  Thorton  v.  Travelers  Co.,   116   Ga.    122;    42   S.   E. 
287  ;   94  A.   S.  R.   99  ;  Mech.  Ins  Co.  v.  Mut.  Assoc.,   98  Ga.   262  ; 

25  S.  E.  457. 

26.  Richards  on  Insurance.   Sec.    136. 

Sanford  v.  Royal  Co.,   11  Wash.  653 ;   40  Pac.   609. 
Short  v.  Home  Co..  90  N.  T.  16  ;  48  A.  R.  138. 
Morrison  v.  Tennessee,  18  Mo.  262 ;  59  A.  D.  299. 
Koshland  v.  Hartford  Co..  31  Oreg.  402;   49  Pac.  866. 
Trade  Ins.  Co.  v.  Barracliff.  45  N.  J.  543. 
Guest  v.  Ins.  Co.,  66  Mich.  98  :  33  N.  W.  31. 

27.  Pope  v.  Glens  Falls  Co.,  136  Ala.  670;  34  So.  29. 


INSURANCE  281 

Sec.  281.  So,  therefore,  the  principle  applicable 
to  the  matter  under  discussion  may  be  stated  thus: 
The  application  for  insurance  usually  contains  a 
representation  that  the  insured  is  the  absolute  owner 
of  the  property  insured ;  the  policy  contains  a  clause 
to  the  effect  that  unless  the  condition  of  the  title  is 
truly  stated  in  the  application,  or  the  insured  is  the 
unconditional  owner,  or  if  the  building  stands  on 
leased  ground,  the  policy  shall  be  void ;  it  is  the  duty 
of  the  agent  of  the  insurer  to  make  proper  inquiry 
as  to  the  title,  and  if  he  fail  to  make  such  inquiry,  or 
if  he  know  at  the  time  of  the  delivery  of  the  policy 
or  if  he  have  knowledge  of  sufficient  facts  to  put 
him  on  inquiry  as  to  the  true  state  of  the  title  of  the 
property  insured,  his  knowledge  and  acts  are  imput- 
able  to  his  principal  and  the  policy  will  be  held  valid 
even  though  the  condition  as  to  the  title  has  been 
broken28. 

28.     Parsons  v.  Knoxville  Co.,   132  Mo.  App.   583  ;   34   S.  W.   476. 
Born  v.  Home  Ins.  Co..   120  la.  299;   94  N.  W.   849. 
Allen  v.  Home  Co.,  133  Cal.  29;   65  Pao.  138. 
Germania  Co.  v.   Hick,   23   111.  App.   381 ;   125  111.   361 ;   17   N.  B. 

792  ;  8  A.  S.  R.  384. 

Mutual  Co.  v.  Hammond.  106  Ky.  386;  50  S.  W.  545. 
Forward   v.    Continental   Co..    142    N.    Y.    382;    37    N.    B.    615;    25 

L.  R.  A.  637. 
Arthur   v.    Palatine   Co.,    35    Oreer.    27 ;    57    Pac.    62 ;    76    A.    S.    R. 

450. 

West  v.  Norwich  Co..  10  Utah,  442  :  37  Pac.  685. 
Goss  v.  AKT.  Co..   92  Wis.  233;   65  N.  W.   1036. 
Cowell  v.  Phoenix  Co..   126  N.  Car.   684;   36  S.  E.   184. 
Leach  v.  Republic  Co.,  58  N  H.  245. 
Home  Co.  v.  Gibson.  72  Miss.  58  ;  17  So.  13. 
Wagner  v.  Westchester  Co.,   92  Tex.   549;   50  S.  W.   569. 
Medley  v.  German  Alliance  Co..  55  W.  Va.  342;   47  S.  E.   101. 
Home  Co.  v.  Duke.  84  Ind.   253. 

Schaeffner  v.  Farmers  Co.,  80  Md.  563 ;  31  Atl.  317. 
Parsons  v.  Knoxville  Co.,  132  Mo.  583  ;  31  S.  W.  117. 
Cowart  v.  Capital  City  Co.,  114  Ala.  356 ;  22  So.  574. 


282  THE  LAW  OF  WAIVER 

(b)  CONDITION  AS  TO  ENCUMBRAN- 
CES : — Sec.  282.  The  foregoing  remarks  anent  con- 
ditions as  to  TITLE  are  equally  applicable  to  pro- 
visions that  the  undisclosed  existence  of  encumbran- 
ces at  the  time  of  application  for  insurance  shall  ren- 
der the  policy  subsequently  issued  void.  If  an  appli- 
cation for  fire  insurance  is  oral  and  no  inquiry  is 
made  by  the  agent  of  the  insurer  as  to  the  condition 
of  the  title  to  the  property  and  the  insured  says 
nothing  about  the  existence  of  a  mortgage  thereon, 
but  does  not  keep  silent  through  any  sinister  motive 
or  with  the  intention  to  mislead  or  deceive  the  insur- 
er, then  the  fact  that  when  the  policy  issued  there 
was  a  mortgage  upon  the  insured  property  will  not 
invalidate  the  policy  notwithstanding  the  fact  that 
the  policy  provides  that  it  shall  be  void  if  there  ex- 
ists an  encumbrance  by  mortgage  or  otherwise  upon 
the  insured  property29.  For  an  applicant  for  in- 
surance is  not  required  to  show  the  exact  condition 
of  his  property  or  its  title  unless  he  is  requested  to 
do  so;  and  failure  of  the  insurer  to  make  such  re- 
quest or  inquiry  respecting  the  title  is  a  waiver  of 
the  right  to  avoid  the  policy  in  case  encumbrances 
exist  contrary  to  the  terms  of  the  policy30.  The  rea- 
son for  this  is  that  applicants  for  insurance  are  not 


29.  Hanover  Co.  v.  Bohn,  48  Neb.  743  ;  67  N.  W.  774 ;  58  A.  S.  R. 

719. 

Ins.  Co.  v.  Bachelder,  44  Neb.  549 ;  62  N.  W.  911. 
Sproul  v.  West.  Co.,  33  Oreg.  98;  54  Pac.  180. 
Wright  v.  London  Co..  12  Mont.  474 :  31  Pac.  87. 
Aetna  Co.  v.  Holcomb,  89  Tex.  404;  34  S.  W.  915. 
German  Co.  v.  Nelwedde,  11  Ind.  App.  624 ;  39  N.  B.  534. 

SO.     Western  Co.  v.  Home  Co.,  145  Pa.  St.  346;  22  Atl.  665;  27  A.  8. 

R.   703. 

Hall  v.  Niagara  Co.,   93   Mich.   184;    53  N.  W.   727;   32  A.   S.  R. 
497. 


INSURANCE  283 

generally  aware  of  the  necessity  of  disclosures  which 
long  experience  in  the  business  of  insurance  has 
shown   to    underwriters    to  be  necessary,  or   what 
disclosures  it  is  important  to  make ;  while  insurance 
companies  cannot  only  protect  themselves  by  making 
inquiries  in  regard  to  such  things  as  they  may  deem 
material,  but  as  is  well  known,  are  in  the  habit  of 
doing  so.    If  an  insurance  company  elects  to  issue 
its  policy  without  any  application  or  representation 
in  regard  to  the  title  to  the  property  upon  which  the 
insurance  is  effected,  the  company  cannot  complain 
after  a  loss  has  ensued,  that  the  interest  of  the  as- 
sured was  not  correctly  stated  in  the  policy,  or  that 
an  existing  encumbrance  was  not  disclosed31.  A  for- 
liori,  where  the  insured  informs  the  agent  of  the  in- 
surer of  the  amount  of  the  encumbrances  against  the 
property  the  condition  is  not  violated  if  the  amount 
never  exceeds  the  amount  stated32,  and  the  condition 
is  waived  if  the  agent  fails  to  make  mention  of  the 
encumbrances.    And  it  doesn't  matter  whether  the 
agent  was  acting  for  the  insurer  or  not  at  the  time 
he  acquired  knowledge  of  the  encumbrances;  if  he 
retained  a  recollection  of  the  fact  and  had  it  in  mind 
when  he  effected  the  insurance,  that  is  sufficient  to 
bind  his  principal  and  an  issuance  of  a  policy  there- 
after is  a  waiver  of  a  breach  of  condition  against 
encumbrances33.    And  where  it  appeared  that  an  ap- 


31.     Morotock  Co.  v.  Rodcfer.   92  Va.  747:  24  S.  E.   393;   53  A.   S.  R. 

846. 
Wood,  Fire  Insurance.  Sec.  233. 

82.     Gould   v.    Dwelling  House  Co.,   134   Pa.   St.   570 ;    19   Atl.    793  ;    19 
A.   S.   R.    712. 

S3.     Wilson  v.   Minnesota  Co.,    36   Minn.    112;   30   N.   W.    401;    1  A.   S. 

R.    659. 
Wade    on    Notice.    Sec.    687. 


284  THE  LAW  OP  WAIVEB 

plication  falsely  stated  that  there  were  no  encum- 
brances on  the  property,  but  such  false  answer  was 
inserted  on  the  advice  of  the  company's  agent,  the 
issuance  of  a  policy  thereon  was  held  a  waiver  of 
the  breach  of  condition  against  encumbrances.  The 
court  -used  this  language:  "The  insurers  are 
chargeable  with  knowledge  possessed  by  their  agent, 
and  that  consequently  it  was  a  fraud  on  their  part 
to  receive  the  premium  moneys  and  deliver  the  poli- 
cies without  intending  it  should  have  effect  under 
such  circumstances.  Such  a  fraud  the  law  will  not 
permit  to  be  consummated;  but  on  the  contrary  it 
will  hold  that  when  they  delivered  the  policy  it  was 
with  the  intention  that  it  should  take  effect,  and  that 
the  insured  should  have  the  benefit  from  it  for  which 
he  paid  his  money ;  and  if  there  was  any  error  or  am- 
biguity in  the  application  which  their  agent  pre- 
pared, they  must  be  held,  under  the  circumstances 
here  appearing,  to  have  waived  it"34.  And  where 
the  insured  stated  to  the  agent  that  there  was  an 
encumbrance  on  the  property,  such  fact  may  be 
proved  by  parol  although  the  policy  stated  that  there 
was  no  encumbrance35. 

Sec.  283.  The  cases  are  not  altogether  uniform 
in  this  particular;  for  it  has  been  held  that  if  the 
policy  prohibits  a  waiver  by  the  agent  the  insured 
is  bound  by  the  provisions  against  encumbrances, 
and  an  attempted  waiver  may  not  be  shown36.  And 
it  is  said  that  if  the  insured  knew  at  the  time  that  the 
answers  to  interrogatories  in  the  application  were 


34.     Aetna  Co.  v.  Olmstead.   21  Mich.    246:    4  A.  R.   483. 

85.     Boetcher  v.  Hawkeye  Co.,  47  la.  243. 

36.     Hawkins  v.  Rockford  Ins.  Co..  70  Wis.  1 ;  35  N.  W.  34. 


INSURANCE  285 

false  he  could  not  enforce  the  policy  even  though  he 
had  correctly  stated  the  matter  to  the  agent37.  But 
such  doctrine  prevails  mainly  in  those  courts  where 
it  is  held  that  statements  in  an  application  made  by 
an  agent  of  the  insurer  are  not  to  be  imputed  to  the 
insurer38,  or  where  the  charter  of  the  company  pro- 
hibits a  waiver39. 

Sec.  284.  But  the  overwhelming  weight  of  au- 
thority is  in  favor  of  the  principle  that  if  an  agent 
of  the  insurer  fail  to  state  truly  in  the  application 
the  facts  given  him  by  the  insured,  or  if  when  mak- 
ing the  application  the  agent  have  knowledge  of  ex- 
isting encumbrances,  his  knowledge  is  that  of  his 
principal  and  a  subsequent  issuance  of  a  policy  is  a 
waiver  of  a  breach  of  condition  against  encumbran- 
ces40. 

37.  Blooming   Grove   Co.   v.   McAnerney.    102    Pa.    St.    355;    48   A.    R. 

209. 

38.  Lowell  v.  Middlesex  Co..   8  Gush.  127    (Mass.). 
Richardson  v.  Maine  Co.,  46  Me.  394  ;  74  A.  D.  459. 

39.  Leonard  v.  American  Co..  97  Ind.   299. 

40.  Continental  Co.   v.   Chamberlain.    132   U.    S.    304;    10   Sup.   Ot.   R. 

87;    33   L.   Ed.    341. 

London  Co.  v.  Fischer.   92  Fed.   500 ;   34  C.   C.  A.   503. 
MoElroy  v.  Brit.-Amer.  Co.,  94  Fed.  990;  36  C.  C.  A.  615. 
Beebe  v.  Ohio,  etc.,  Co.,  94  Mich.  514 ;  53  N.  W.  818 ;  32  A.  S.  R. 

519;  18  L.  R.  A.  481. 

Hartford  Co.  v.  McCarthy,   69  Kans.   555  ;   57  Pac.  90. 
Breedlove  v.  Norwich  Co..  124  Cal.  164 ;  56  Pac.  770. 
German-Am.  Co.  v.  Yeagley,  168  Ind.  651 ;  71  N.  E.  897. 
Phoenix  Co.  v.  La  Pointe.  17  111.  App.  248;  118  111.  384;  8  N.  B. 

353. 
German  Co.  v.  Hayden,   21  Colo.   127:   40  Pac.   453;   62  A.   S.   R. 

206. 

Breckenridge   v.  American   Co.,    87   Mo.   62. 
Vesey  v.  Commercial  Co.,   101   N.  W.  1074   (S.  Dak.). 
Botoklrk  v.  Phoenix  Co..  102  Wis.  13;   78  N.  W.  160. 
Ring  v.  Windsor  Co..  51  Vt.   563. 

Robbins  v.  Springfield  Co.,   149  N.  T.  477;   44  N.  B.   59. 
German   Co.   v.   Gray.    43    Kans.    497 ;    23   Pac.    637 ;    19  A.    S.    R. 

150;   8  L.  R.  A.   70. 

Hornthal  v.  Western  Co..  88  N.  Car.  71. 

German  Co.  v.  Everett.   18  Tex.  Civ.  APD.  514;  46  S.  W.  95. 
Hartford  Oo.  v.  Harmer,  2  Oh.  6t.  452:  57  A.  D.  684. 


286  THE  LAW  OF  WAIVER 

(c)  CONDITION  AS  TO  VACANCY:— Sec. 
285.  Whether  the  fact  that  a  house  is  vacant  when  in- 
sured will  render  effective  a  provision  in  the  policy 
that  it  shall  be  void  if  the  house  is  vacant,  depends 
on  the  knowledge  or  lack  of  knowledge  by  the  insur- 
er or  its  agent  of  such  vacancy.  If  an  insurer  issue 
a  policy  on  property  with  actual  knowledge  of  itself 
or  its  agent  that  the  premises  are  vacant,  he  is  es- 
topped to  allege  such  defense  to  an  action  to  recover 
for  a  loss  under  the  policy41.  And  the  provision  in 
a  policy  that  if  at  any  time  during  the  continuance 
of  the  policy  the  insured  property  should  become 
vacant  the  insurer  should  become  absolved  from  all 
liability  is  held  to  have  no  application  to  buildings 
that  were  vacant  at  the  time  the  policy  was  issued, 
the  insurer  having  notice  of  the  fact42.  The  cases 
are  rather  uniform  on  this  phase  of  the  law  except 
in  those  jurisdictions  where  knowledge  of  the  agent 
is  not  imputable  to  the  insurer43.  But  the  issuance 
of  such  policy  with  knowledge  of  the  vacancy  is  not 
a  waiver  of  the  continuance  of  the  vacancy  beyond 
a  specified  time44. 


41.  Rochester  Co.  v.  Liberty  Ins.   Co..   44   Neb.   537;   62  N.  W.    877; 

48   A.    S.   R.    745. 

42.  Aurora  Co.  v.   Kranlch.   36  Mich.    289. 

Short  v.  Home  Ins.  Co.,  90  N.  T.  16;  43  A.  R.  138. 

43.  Prenderg-ast  v.  Dwelling  H.   Co.,   67   Mo.   App.   426. 

Blass  v.  Agrr.  Ins.  Co.,  46  N.  T.  Supp.  392  ;   18  App.  Dlv.  481. 

Carr  v.  Roger  Williams  Co.,  60  N.  H.  513. 

Liverpool  Co.  v.  McGulre.   52  Miss.  227. 

Devme  v.  Home  Co..  32  W5s.   471. 

Queen  Co.  v.  Strauphan.  70  Kans.  186 ;  78  Pac.  447. 

Jordan  v.  State  Ins.  Co.,   64  la.  216 ;  19  N.  W.  917. 

Lamberton  v.  Conn.  F.  Ins.  Co.,  39  Minn.  130;  39  N.  W.  76. 

44.  Conn.  F.  Co.  v.  Tllley,  88  Va.  1024  ;  14  S.  E.  851 ;  29  A,  S.  R.  770. 


INSURANCE  287 

(d)  CONDITION  AS  TO  USE  OF  PREMI- 
SES : — Sec.  286.    Most  policies  of  fire  insurance  pro- 
vide that  the  premises  shall  not  be  used  for  specified 
purposes  or  that  designated  articles  or  property 
usually  deemed  hazardous  shall  not  be  kept  thereon. 
The  uses  forbidden  are  those  which  render  the  risk 
greater,  and  the  articles  forbidden  to  be  kept  are 
usually  such  as  gasoline  or  other  inflarnable  substan- 
ces, gunpowder,  dynamite,  or  other  explosives.  Such 
use  of  the  premises  or  the  keeping  of  the  forbidden 
articles  thereon  renders  the  condition  of  the  policy 
broken  and  the  insured  cannot  recover  thereon  after 
a  loss.    This  rule,  however,  is  subject  to  the  qualifi- 
cation that  the  insurer  must  not  have  known  before 
or  at  the  time  of  delivery  of  the  policy  that  such  use 
was  being  made  of  the  premises  or  that  such  forbid- 
den articles  were  being  kept  thereon.    If  the  insurer 
had  such  notice,  yet  went  on  and  delivered  the  pol- 
icy, and  accepted  the  premium  money,  the  condition 
will  be  held  to  have  been  waived.    And  in  this  con- 
nection again,  knowledge  of  the  agent  is  imputed  to 
the  principal  and  will  be  given  binding  effect45. 

(e)  CONDITION   AS   TO   PRIOR   INSUR- 
ANCE : — Sec.  287.     Where  policies  provide  that  the 
existence  of  other  insurance  at  the  time  of  their  is- 
sue shall  avoid  the  policies,  such  provisions  are  con- 


4»     Hartley  v.  Perm.  Co..  91  Minn.  382;   98  N.  W.  198;  103  A.  S.  R 

512. 

Kruger  v.  Western  Co.,  72  Cal.  91 ;  13  Pac.  156 ;  1  A.  S.  R.  42. 
Steers  v.  Home  Co.,  38  La.  Ann.  952. 
Farmers  Co.  v.  Nixon,  2  Colo.  App.  265  ;  30  Pac.  42. 
State  Co.  v.  Taylor,   14  Colo.  499;   24  Pac.  333;   20  A.  S.  R.  281. 
Imperial  Co.  v.  Shimer.   96  111.   580. 
Kenton  Ins.  Co.  v.  Downs,  90  Ky.  236;  13  S.  W.  882. 
Rlvara  v.  Queens  Ins.  Co..  62  Miss.  720. 
Peoria  Co.  v.  Hall.  12  Mich.  202. 


THE  LAW  or  WAIVER 

ditions  precedent,  and  if  prior  insurance  exists  at 
that  time,  it  renders  the  policies  voidable.  But  this, 
too,  is  a  condition  that  may  be  waived,  and  the  waiv- 
er may  be  an  express  one  or  evidenced  by  acts  and 
conduct  sufficient  to  induce  the  insured  to  believe 
that  the  condition  would  not  be  insisted  upon.  And 
in  this  connection,  knowledge  of  facts  brought 
to  the  attention  of  its  agent  is  imputed  to  the  insurer 
and  binding  upon  it.  Therefore,  if  at  the  time  of 
the  issuance  of  a  policy  the  agent  knew  of  the  exist- 
ence of  prior  insurance  contrary  to  the  condition  of 
the  policy,  and  with  such  knowledge  he  delivered  the 
policy  and  received  the  premium  money,  the  condi- 
tion is  waived  and  the  insurer  bound46.  The  knowl- 
edge of  the  agent  who  had  effected  the  prior  insur- 
ance is  sufficient47.  So,  waiver  occurs  where  the  in- 
sured stated  to  the  agent  that  there  was  other  in- 
surance, but  signed  an  application  prepared  by  the 
agent  stating  that  there  was  no  previous  insurance48. 
And  a  failure  by  the  insured  to  give  notice  of  other 
insurance  is  not  fatal  to  the  validity  of  the  policy 
where  such  other  insurance  is  already  known  to  the 
insurer,  as  the  issue  of  the  subsequent  policy  is  a 
waiver  of  the  condition  against  pre-existing  insur- 
ance49, as  is  also  the  accepting  of  a  renewal  pre- 


46.  Putnam  v.  Common  wealth,  4  Fed.   753. 
L/ockwood  v.  Middlesex  Co.,  47  Conn.  553. 

No.  Brit.  Co.  v.  Stelffer.  124  111.   81;   16  N.  H.  §5. 
Ly  coming  Co.  v.   Barringer.   73  111.   230. 

47.  Richmond  v.  Niasara  Co..  7$  N.  Y.  230. 

48.  Am.  Ins.  Co.  v.  LuttrelL  89  111.  314. 

England  v.  Westchester  Co.,  81  Wls.   583 ;  61  N.  W.   954  ;   29  A. 
S.    R.    917. 

49.  Rowley  v.  Empire  Co.,  36  N.  T.   550. 
Wash.  Ins.  Co.  v.  Davison,  30  Md.  91. 
Webster  v.   Phoenix  Co..   36  Wis.   67. 

May,  Insurance,  Sec.  375,  citing  above  authorities. 


INSURANCE  289 

mium50.  And  neglect  of  the  insurer  to  avoid  the  pol- 
icy for  an  unreasonable  time  after  knowledge  of  its 
right  to  do  so  is  a  waiver  of  such  cause  of  forfeit- 
ure51. It  has  been  held  that  where  a  policy  con- 
tained a  provision  that  it  should  be  void  if  other  in- 
surance should  not  be  endorsed  on  it,  that  the  ex- 
istence of  other  insurance  not  so  endorsed  did  not 
make  the  policy  absolutely  void  but  voidable  and 
capable  of  being  made  valid  by  the  acts  or  acqui- 
escence of  the  insurer  amounting  to  a  waiver52 ;  and 
want  of  indorsement  of  other  insurance  upon  a  pol- 
icy at  the  time  of  its  issuance  cannot  invalidate  it 
where  such  other  insurance  was  already  known  to 
the  insurer53. 

Sec.  288.  The  rules  above  announced  are  not 
without  dissent.  It  has  been  said  that  the  require- 
ment that  other  insurance  be  endorsed  on  the  policy 
is  a  condition  precedent  to  the  right  of  recovery,  and 
that  mere  notice  to  the  agent  or  verbal  communica- 
tion to  the  insurer  is  not  a  compliance  with  this  re- 
quirement and  does  not  validate  the  policy54.  An 
apparent  concurrence  in  this  last-named  doctrine 
may  be  noticed  in  a  New  York  case55 ;  and  in  its 
favor  the  Supreme  Court  of  the  United  States  has 


50.  Carrol  v.  Charter  Oak  Co.,  1  Abb.  Ct.  of  App.  Dec.  316. 

51.  Fishbeck  v.  Phoenix  Co..  64  Cal.   422. 
City  Ins.  Co.  v.  Carrugi,  41  Ga.  660. 
Pitney  v.  Glens  Falls  Co.,  65  N.  Y.  6. 

52.  Atl.  Ins.  Co.  v.  Goodhull,   35  N.   H.   32S. 

53.  National  Co.  v.  Crane.   16  Md.   260. 

Kenton  Ins.  Co.  v.  Shea,  et  al..  6  Bush  174 ;  99  A.  D.  676. 

54.  Hutchinson  v.  Western  Co.,   21  Mo.   97;   64  A.   D.   218. 
Barrett  v.  Union  Mut.  Co.,  7  Gush.   175. 

Dietz  v.  Mound  City  Co..  38  Mo.  85. 
Bennett  v.   St.   Paul  Co.,  55  N.  J.   L.  377;   27  Atl.  641. 
€6      Sanders  v.  Cooper,  115  N.  Y.  279;  22  N.  E.  212;  12  A.  S.  R.  801. 


200  THE  LAW  OF  WAIVER 

lent  the  weight  of  its  authority56.  But  in  Missouri 
and  New  York  courts  a  change  has  been  made  from 
their  former  views  and  the  first-named  doctrine  has 
been  adopted57.  In  fact  the  greater  number  of  au- 
thorities and  the  weightier  ones  are  in  favor  of  the 
principle  which  sound  sense  and  fair  dealing  de- 
mand, that  if  an  insurer  deliver  its  policy  and  collect 
premiums  from  the  insured,  knowing  at  the  time,  by 
itself  or  its  agent,  of  the  existence  of  other  insurance 
contrary  to  the  terms  of  the  policy,  compliance  with 
the  condition  is  waived  and  the  policy  is  valid  with- 
out an  indorsement  of  the  other  insurance  upon  the 
policy68. 

(f)  CONDITION  AS  TO  "IKON-SAFE" 
PROVISION:— Sec.  289.  Fire  insurance  policies 
frequently  contain  what  is  known  as  an  "Iron-safe 
clause"  applicable  to  insurance  on  stocks  of  mer- 
chandise. This  clause  requires  the  insured  to  keep 
the  books  and  last  inventories  of  his  business  se- 
curely locked  in  a  fire-proof  safe  at  night  and  at  all 
times  when  the  building  containing  the  goods  is  not 
actually  open  for  business,  or  to  keep  such  books  and 
inventories  in  some  place  not  exposed  to  a  fire  which 
would  destroy  the  building69.  This  condition  is  one 
intended  to  relate  not  only  to  the  time  of  executing 


W.     Carpenter  v.  Providence  Co..  16  Pet.   512. 

No.  Assur.  Oo.  v.  Grand  View  Assoc.,  183  U.  S.  308 ;  22  Sup.  Ct 

133. 

M.     Hay  ward  v.  National  Co..  52  Mo.  181. 
Polkingrton  v.  National  Co..  55  Mo.  172. 
Goldwater  v.  Liverpool  Co.,  109  N.  Y.  618 ;  15  N.  B.  895  ;  39  Hun 

176. 

Stage  v.  Home  Co..  78  N.  Y.  Supp.  555;   76  App.  Dlv.  509. 
§8.     Horwitz  v.  Equitable  Co.,  40  Mo.  557 ;  93  A.  D.  321. 
St.     Phoenix  Co.  v.  Schwartz,  115  Ga.  113;  41  S.  B.  240;  90  A.  S.  R. 
M. 


INSUKANCE  291 

the  policy  but  also  to  the  whole  period  during  which 
it.  is  in  existence.  Many  cases  hold  that  this  condi- 
tion, like  many  others  hereinbefore  discussed,  may 
be  waived  either  expressly  or  by  a  course  of  con- 
duct inconsistent  with  any  intention  to  rely  upon  it. 
And  these  cases  hold  that  if  at  the  time  the  agent 
delivered  the  policy  the  books  and  inventories  were 
not  being  kept  by  the  insured  in  the  manner  speci- 
fied in  the  policy,  and  the  agent  knew  such  fact  but 
delivered  the  policy  notwithstanding,  such  conduct 
amounts  to  a  waiver  of  the  condition  as  the  knowl- 
edge of  the  agent  is  imputed  to  the  principal.  The 
failure  to  keep  the  safe,  or  the  books  therein,  or  out 
of  the  building  will  not  avoid  the  policy  when  the 
agent  of  the  company  soliciting  the  insurance  knew 
that  there  was  no  such  safe ;  the  reason  for  this  rule 
is  that  such  clauses  are  conditions  subsequent  that 
operate  as  a  forfeiture  of  the  right  to  compensation 
for  loss  sustained,  and  the  courts  will  never  declare 
a  forfeiture  of  a  right  when  there  is  any  reason  for 
an  equitable  estoppel  from  such  plea60. 

American  Co.  v.  Felder,  44  S.  Car.  478  :  22  S.  E.  598. 

Candy  v.  Orient  Co..  62  S.  Car.  224 ;  29  S.  E.   655. 

Mesterman  v.  Home  Co..  5  Wash.  524;  32  Pac.  458;  34  A.  S.  R. 

877. 
Anderson  v.  Manchester  Co..  59  Minn.  182 ;  60  N.  W.  1095  ;  63  N. 

W.   241:  50  A.  S.  R.   400. 

Miller  v.  Hartford  Co.,  70  la.  704;  29  N.  W.  411. 
Western  Co.  v.  Phelps,  77  Miss.  625;   27  So.  745. 
Reid  v.  Equitable  Co..  17  R.  I.  785;  24  Atl.  833;  18  L.  R.  A.  496. 
Roberts  v.   Continental  Co.,  41  Wis.   321. 
Johnson  v.  Farmers  Co..   126  la.   565  ;   102   N.  W.   502. 
Koshland  v.  Home  Co..  31  Oreg.  321 ;   50  Pac.  567. 
Germania  Co.  v.  Heflin,  22  Ky.  L.  R.  1212  ;  60  S.  W.  393. 
Niagara  Co.  v.  Johnson,  4  Kans.  App.  16  ;  45  Pac.  789. 
Spalding  v.  N.  H.  Fire  Co.,  71  N.  H.  441 ;  52  Atl.  858. 
Osborne  v.  Phenix  Co.,  23  Utah  428;  64  Pac.  1303. 
Fishback  v.  Phoenix  Co.,  54  Cal.  422. 
Germania  Co.  v.  Heflin,  22  Ky.  L.  R.  1212  ;  60  393. 
Citizens  Co.  v.  Crist,  22  Ky.  L.  R.  47  ;   56  S.  W.   658. 
60.     Gernrania  Co.  v.  Ashby,  112  Ky.  303 ;  "65  S.  W.  611;  99  A.  S.  R. 

295 


292  THE  LAW  OF  WAIVER 

Sec.  290.  An  insurance  company  cannot  osten- 
sibly contract  for  keeping  an  inventory  and  books 
of  account  in  an  iron  safe,  and  yet  with  full  knowl- 
edge that  the  insured  had  not  intended  to  have  such 
safe,  and  with  full  knowledge  that  such  inventory 
and  books  of  account  had  been  kept  and  would  be 
continued  to  be  kept  at  the  store,  to  receive  the  in- 
sured's  premiums  as  for  a  valid  policy,  the  company 
intending  to  deny  its  validity  if  a  loss  should  occur. 
To  sanction  such  would  be  to  sanction  fraud61.  The 
reasons  for  holding  the  company  to  a  waiver  in  such 
case,  appeal  to  us  less  forcibly  than  for  the  waiver 
of  other  conditions  in  insurance  policies.  The  con- 
dition attaches  to  the  policy  at  the  time  of  its  de- 
livery and  continues  during  the  life  of  the  policy, 
and  if  the  insured  has  been  in  the  habit  of  keeping 
his  books  and  inventories  in  a  manner  other  than 
that  provided  in  the  contract  of  insurance,  the  ac- 
ceptance of  the  policy  with  its  condition  is  notice  to 
him  to  change  his  manner  of  keeping  them,  and  if 
he  fails  to  do  this,  it  occurs  to  us  that  such  is  a  plain 
violation  of  the  conditions  of  his  contract  for  which 
the  insurer  should  not  suffer.  Some  courts  lean  in 
this  direction62,  but  the  majority  favor  the  doctrine 
that  acquiescence  by  the  insured  in  the  breach  of  the 
condition  is  a  waiver  of  it. 


61.     Mitchell  v.  Miss.  Home  Co.,  72  Miss.   53  :   18  So.   86  ;   48  A.  S.  R. 
535. 

Rivara  v.  Queen's  Co..  62  Miss.  720. 

Sprott  v.  N.  Orleans  Co..  53  Ark.  215 ;  13  S.  W.  799. 

Niagara  Co.  v.   Brown,  123  111.  356;   24  111.  App.   224;   15   N.  E. 
166. 

Phoenix  Co.  v.  Handle,  81  Miss.  720 ;  33  So.  500. 
«2.     Morris  v.  Imperial  Co.,  106  Ga.  461 ;  32  S.  E.  595. 

Howers  v.  Mut.  Co.,  113  la.  551;  85  N.  W.  763. 

'rillum  v.  Fire  Assoc.,  106  Mo.  App.  673  ;  80  S.  W.  283. 

Roberts  Co.  v.  Sun  Co.,  13  Tex.  Civ.  App.  64 ;  35  S.  W.  955. 

Maupin  v.  Scottish  Co.,  53  W.  Va.  557  ;  45  S.  E.  1003. 


INSURANCE  293 

(2).    BREACH  OF  CONDITION  SUBSEQUENT  TO  DE- 
LIVERY OP  POLICY. 

(a)  CHANGE  IN  TITLE :— Sec.  291.  For  the 
purpose  of  influencing  the  assured  to  retain  the 
proper  motive  to  be  vigilant  in  the  care  of  his  prop- 
erty, most  policies  insuring  property  against  loss 
by  fire  provide  that  an  alienation  of  the  property 
or  a  change  in  ownership  shall  render  them  void, 
unless  the  insurer  consent  to  such  alienation,  such 
consent  to  be  endorsed  on  the  policy.  Such  provis- 
ion is  valid  and  binding  on  the  assured  as  he  will  be 
conclusively  presumed  to  have  knowledge  of  the  con- 
ditions in  the  policy  which  he  holds.  But  the  pro- 
vision is  inserted  for  the  benefit  of  the  insurer,  and 
like  all  other  rights  it  has,  the  right  to  insist  on  this 
provision  may  be  waived  by  it  either  expressly  or 
by  any  course  of  conduct  calculated  to  induce  the 
assured  to  believe  that  a  forfeiture  on  account  of  the 
alienation  of  the  property  would  not  be  invoked.  But 
mere  notice  of  a  transfer  is  not  sufficient  to  consti- 
tute a  waiver,  nor  is  the  insurer  bound  to  expressly 
disapprove  it63.  It  is  otherwise,  if  after  such  notice 
the  insurer  receive  and  retain  premiums  due  on  the 
policy64.  In  this,  as  in  other  cases  of  waiver,  an 
agent  of  the  insurer  may  assent  to  a  transfer,  and 
his  act  will  bind  his  principal65,  although  it  is 
thought  that  such  would  not  be  true  where  the  agent 
had  only  the  authority  to  solicit  the  insurance  and 
not  to  collect  premiums  and  otherwise  attend  to  the 
company's  business.  Also  the  company  is  bound 
where  its  agent  knows  of  a  transfer  and  assents  to 
it  but  fails  to  indorse  such  assent  on  the  policy66.  So, 

63.  Girard  F.  &  M.  Co.  v.  Hebard,  95  Pa.  St.  45. 

64.  Millis  v.  Scottish  Co.,  92  Mo.  App.  211  ;  fig  S.  W.  1066. 

65.  Fire  Ins.  Co.  v.  Bide.   Assoc.,  43  N.  J.  652. 

66.  Fire  Ina  Assoc.  v.  Miller,  2  Tex.  Civ.  Cases,  333. 


294  THE  LAW  OF  WAIVER 

a  waiver  occurs  where  the  agent  assents  to  a  corres- 
ponding assignment  of  the  policy,  and  failure  of  the 
company  for  more  than  a  year  after  notice  of  such 
assignment  to  object  to  the  act  of  the  agent  in  agree- 
ing to  the  assignment  is  a  ratification  of  his  act67. 
And  where  the  agent  forwarded  a  policy  to  the  in- 
surer for  its  approval,  with  knowledge  of  an  alien- 
ation by  the  assured,  agreeing  that  the  policy  should 
remain  good  until  he  could  procure  the  assent  of  the 
insurer  to  the  assignment,  a  forfeiture  on  account 
of  the  alienation  was  held  waived68.  And  where  a 
policy  is  forfeited  by  a  change  in  the  title  of  the  in- 
sured property  and  the  agent  of  the  insurer  informs 
the  person  for  whose  benefit  the  policy  was  issued 
that  the  policy  will  be  allowed  to  stand,  the  insurer 
cannot  after  a  loss  declare  the  policy  void09.  As  was 
said  above,  the  same  principles  governing  waivers 
of  conditions  in  insurance  policies  generally  are  ap- 
plicable to  the  condition  under  discussion ;  and  mere 
knowledge  by  the  agent  issuing  the  policy  or  renew- 
ing it  and  receiving  the  premium,  of  facts  consti- 
tuting a  breach  of  the  condition,  without  a  prompt 
declaration  of  a  forfeiture,  is  a  waiver  by  him  and 
by  hie  principal  of  the  breach  of  the  condition  so 
known  to  be  broken.  This  is  put  upon  the  ground 
that  notice  to  the  agent  is  notice  to  the  principal, 
that  what  the  agent  knows  the  company  must  be  re- 
garded as  knowing ;  and  that  as  it  would  foe  a  gross 
fraud  for  the  company  knowingly  to  receive  the  pre- 
mium for  issuing  a  policy  on  which  it  did  not  intend 


67.  Benninghoff  v.  Apr.  Ins.  Co.,  93  N.  T.  495. 

68.  111.  Mut.  Co.  v.  Stanton,  67  111.  354. 

69.  Pratt  t>.  N.  Y.  Cent.  Co.,  55  N.  Y.  505;  14  A.  R.  304. 


INSURANCE  296 

to  -be  liable  and  which  it  intended  to  treat  as  void  i» 
case  of  a  loss,  so  it  is  equally  a  fraud  and  its  fraud 
for  its  agent  to  do  so70. 

Sec.  292.  If  the  general  agent  of  an  insurance 
company  applies  to  an  insured  to  renew  his  policy 
and  is  informed  by  the  latter  that  he  has  contracted 
to  sell  the  insured  property,  has  put  the  purchaser 
in  possession  and  received  part  of  the  purchase-mon- 
ey, giving  a  full  statement  of  the  condition  of  the 
title,  and  such  agent,  without  written  application, 
executes  and  delivers  a  new  policy  on  the  property, 
which  he  states  is  sufficient  to  meet  the  situation,  and 
receives  the  premium,  the  insurer  cannot  set  up  a 
forfeiture  on  account  of  the  condition  of  the  title 
contrary  to  the  terms  of  the  policy71. 

(b)  VACANCY :— Sec.  293.  It  has  been  held 
that  when  an  agent  delivers  a  policy  of  insurance 
constituting  a  complete  contract,  his  authority  over 
it  or  the  subject-matter  ceases;  that  he  has  no  au- 
thority to  modify  its  provisions  nor  to  waive  its 
terms;  that  after  delivery  of  the  policy,  any  knowl- 
edge of  a  breach  of  its  conditions  coming  to  him  is 
not  iniputable  to  his  principal  and  not  binding  upon 
it.  Courts  go  very  far  in  applying  this  principle  to 
the  case  of  a  vacancy  of  the  insured  premises  oc- 
curring after  the  delivery  of  the  policy  where  there 
is  a  provision  that  such  vacancy  shall  render  the 


70.  Peoria  M.   Co.   v.  Hall,    12   Mich.    214. 
Campbell  v.  Merchants  Co.,  37  N.  H.  48. 

71.  Virginia  etc.  Co.  v.  Richmond  Co..  102  Va.  429;  46  S.  E.  462;  10*. 

A.  S.  R.  846. 

See:  Moffit  v.  Phenix  Co.,   11  Ind.  App.   233;   38  N.  E.   835. 
Shuggart  v.  Lycoming  Co.,  55  Cal.  408. 


296  THE  LAW  OF  WAIVER 

policy  void72.  And  further,  if  an  agent  has  only 
authority  to  solicit  insurance  and  consummate  the 
same,  or  to  issue  the  policy,  with  no  authority  to 
change  or  waive  any  of  its  terms  or  conditions,  any 
attempted  change  or  waiver  by  him  after  the  policy 
has  been  delivered  is  generally  void;  and  in  the  ab- 
sence of  any  showing  to  the  contrary,  it  will  gen- 
erally be  presumed  that  the  assured  had  knowledge 
of  the  terms  and  conditions  of  the  policy.  Hence, 
if  the  policy  provides  that  the  policy  shall  be  void 
if  the  property  becomes  vacant,  without  the  consent 
of  an  officer  of  the  company  indorsed  on  the  policy, 
a  waiver  by  the  local  agent  of  this  condition  after 
the  insurance  is  effected  is  unauthorized  and  ren- 
ders the  policy  void73. 

Sec.  294.  But  while  a  respectable  array  of  au- 
thorities hold  to  the  principles  above  announced,  it 
is  difficult  to  see  why  an  agent  clothed  with  authority 
to  collect  premiums  falling  due,  or  to  assent  to  a 
change  in  the  ownership  of  the  insured  property,  or 
to  waive  any  other  condition  after  the  taking  effect 
of  the  policy,  may  not,  for  the  insurer,  forego  the 
benefit  of  the  vacancy  clause.  Better  reasoning,  and 
many  authorities  support  the  doctrine  that  he  may. 
Of  course,  to  constitute  a  waiver,  the  company  must 
either  itself,  or  by  some  act  of  its  agent  having  ap- 
parent or  real  authority,  do  or  say  something  that 
induces  the  insured  to  do  or  forbear  to  do  something 
whereby  he  is  prejudiced74.  It  is  no  waiver  for  the 


72.  Hartford  Co.   v.   Davenport.,   37  Mich.   609. 
Harrison  -u.  City  Ins.  Co.,   9  Allen,  231;   85  A.   D.   751. 

73.  Burlington  Co.  v.  Gibbons,   43   Kans.   15;   22  Pac.   1010;    19  A.   S. 

R.  118. 

74.  Weidert  v.   State  Ins.  Co.,   19  Oreg.   261;   24  Pac.   242;   20  A.  S. 

R.  809. 


INSURANCE  297 

agent  to  tell  the  assured  that  the  vacancy  will  inval- 
idate the  policy  or  where,  knowing  of  the  vacancy 
subsequent  to  delivery  of  the  policy,  the  agent  mere- 
ly remains  silent75.  Still,  knowledge  of  the  agent  is 
knowledge  of  the  insurer,  and  if  the  agent  knows  a 
house  is  vacant  at  the  time  of  delivering  the  policy 
insuring  it,  the  vacancy  clause  is  waived76;  and  an 
agent  may  indorse  on  a  policy  consent  for  the  prem- 
ises to  be  vacant  or  he  may  waive  such  indorse- 
ment77, even  though  the  policy  provide  that  no  agent 
has  power  to  waive  any  of  its  terms. 

(c)  ENCUMBRANCES:— Sec.  295.  Policies 
may  lawfully  provide  that  no  encumbrances  shall  be 
placed  on  the  insured  property  subsequent  to  deliv- 
ery of  the  policy,  and  in  such  case,  a  violation  of  the 
provision  avoids  the  policy.  But  the  effect  of  such 
circumstance  may  be  waived  by  the  insurer,  express- 
ly or  impliedly,  by  itself  or  its  agent.  And  it  is  said 
that  an  insurance  agent  furnished  by  his  principal 
with  blank  applications  and  policies  duly  signed  by 
the  company's  officers,  and  who  has  been  authorized 
to  take  risks,  to  issue  policies  by  simply  signing  his 
name,  to  collect  premiums  and  cancel  policies  with- 
out consulting  his  principal,  is  empowered  to  waive 
conditions  of  forfeiture  in  such  policies  for  encum- 
brances placed  upon  the  insured  property.  He  may 
waive  such  forfeiture  by  parol,  notwithstanding  the 
limitation  upon  his  power  contained  in  the  policy78. 


75.  May,   Insurance,   Sec.    249   H. 

76.  Sentell  v.  Oswego  Co.,   16  Hun  518. 
Jordan  v.  State  Co.,  64  la.  216. 
Vanderhoff  v.  Agr.  Ins.   Co.,   46  Hun   328. 

77.  Davey  v.   Glens  Falls  Co.,   9   Ins.  L.   J.    499    (Minn.)  ;   Fed.   Cas. 

No.   3590. 

78.  German-Am,   Co.  v.   Humphrey,    62  Ark.   349;   35   S.  W.  428;   54 

A.    S.    R.    297. 


298  THE  LAW  OF  WAIVEB 

An  assent  by  the  company  to  a  mortgage  on  the  in- 
sured property  is,  of  course,  a  waiver  of  the  clause 
in  the  policy  against  subsequent  encumbrances.  So, 
where  the  insurer  had  notice  of  a  sale  of  the  prop- 
erty and  assented  thereto  and  its  agent  had  notice 
of  a  mortgage  executed  as  a  part  of  the  purchase- 
price,  the  company  was  held  to  have  assented  to  the 
mortgage  and  could  not  declare  a  forfeiture  on  ac- 
count of  a  breach  of  the  condition  against  encum- 
brances79. 

Sec.  296.  Where  the  point  has  been  raised,  the 
courts  have  generally  held  that  where  the  agent  as- 
sents to  the  encumbrance  or  does  any  act  leading  the 
assured  to  believe  that  the  policy  will  not  be  can- 
celled for  a  violation  of  the  condition  against  en- 
cumbrances, the  breach  is  waived80. 

(d)  MISUSE  OF  PREMISES:— Sec.  297. 
A  majority  of  the  courts  hold  directly  that  a  local 
agent  of  an  insurance  company  authorized,  as  most 
of  them  are,  to  solicit  insurance,  deliver  policies  and 
collect  premiums,  has  no  authority  to  waive  a  con- 
dition prohibiting  the  use  of  the  premises  for  desig- 
nated purposes.  A  Federal  court  has  said:  "The 
fact  that  a  local  agent  obtained  knowledge,  after  the 
execution  of  the  policy,  that  gasoline  was  being  used 
on  the  premises,  contrary  to  an  express  promissory 
warranty,  and  his  mere  silence  on  the  subject  do 


79.     German  Tns.  Co.  v.  York,   48  Kans.  488 ;   29  Par.   486 :   30   A.   B. 
R.   313. 

Farmers  Ins.  Co.  v.  Ashton,  31  Oh.  St.  477. 
SO.     Bushnell  v.  Farmers  Co.,  110  Mo.  App.  223;  85  S.  W.  10S. 

Hardwlck  v.  State  Co.,  23  Greg-  290;  31  Pac.  666. 

Kenier  v.  Dwelling  H.  Co.,  74  Wfis.  89 ;  42  N.  W.  208. 


INSURANCE.  290 

not  operate  as  a  waiver  of  such  condition,  where 
the  policy  provides  that  he  shall  have  no  authority 
to  change  or  modify  any  of  its  terms.  And  the 
fact  that  the  insurer  has  the  right  to  cancel  the 
policy  for  any  unauthorized  acts  on  the  part  of  the 
insured  raises  no  obligation  to  formally  cancel  the 
same;  and  its  failure  to  do  so  is  no  waiver  of  its 
right  to  rely  on  the  breach81.  This  is  extending  the 
doctrine  to  a  considerable  length,  and  it  is  thought 
that  it  conflicts  somewhat  with  the  law  to  be  men- 
tioned in  a  succeeding  section  relating  to  forfeit- 
ures. But  a  forfeiture  created  by  a  breach  of  a 
condition  in  a  policy  prohibiting  the  use  of  gaso- 
line in  the  building  is  not  waived  because  the  com- 
pany's agent,  whose  authority  was  limited  to  so- 
liciting insurance,  delivering  policies  and  receiving 
premiums,  consented  that  the  building  might  be 
used  as  a  restaurant  which  included  the  use  of  a 
gasoline  stove82. 

Sec.  298.  But  a  Kansas  court  has  leaned  to 
the  doctrine  that  a  breach  of  the  condition  under 
discussion  may  be  waived  by  an  agent.  But  it  has 
said  that  to  constitute  a  waiver  of  conditions  as  to 
the  future  use  of  insured  premises,  there  must  be 
something  more  shown  than  mere  knowledge  o'f 
such  use  on  the  part  of  the  agent.  The  language 
and  conduct  of  the  agent  must  be  such  as  to  rea- 
sonably imply  an  intention  on  his  part  to  waive 
such  condition  or  to  consent  to  such  use83.  But  it 
has  been  held  that  the  company  is  not  bound,  even 
where  the  agent  expressly  consented  to  the  pro- 
hibited use  of  the  premises84. 

81.  West  End  Hotel  v.  American  Co.,  74  Fed.  114. 

82.  Garretson  v.  Merchants  Co.,  81  la.  727;  45  N.  W.  1047. 

83.  Concordia  Co.  v.  Johnson,   4  Kans.  App.   7  ;   45  Pac.  722. 

84.  Western  Co.  v.  Rector,  85  Ky.  294;  3  S.  W.  415. 


300  THE  LAW  OP  WAIVER. 

(e)  ADDITIONAL  INSURANCE :  — S  e  c . 
299.  The  view  is  taken  by  many  courts  that  an 
agent  vested  only  with  authority  to  solicit  insurance 
and  deliver  policies  has  no  authority  to  agree  that 
the  assured  may  procure  other  insurance  on  the 
same  property,  and  that  an  express  oral  assent  of 
such  agent  to  the  procuring  of  other  insurance  is 
not  binding  on  the  company,  being  contrary  to  the 
terms  of  the  written  policy85.  Such  an  agent,  it  is 
held,  has  no  power,  after  issuing  a  policy,  to  violate 
a  condition  therein  by  agreeing  with  the  assured 
without  the  knowledge  of  the  insurer  for  additional 
irfsurance  in  another  company;  notice  of  additional 
insurance  to  such  agent  is  not  notice  to  his  princi- 
pal, and  it  is  not  bound  thereby  nor  by  such  oral 
agreement  of  the  agent86.  "An  agent  who  is  only 
authorized  to  solicit  and  take  applications  for  in- 
surance, receive  the  premiums  and  deliver  the  pol- 
icy after  having  been  signed  by  the  proper  officers, 
has  no  authority,  express  or  implied,  to  waive  a 
breach  of  the  policy  relating  to  additional  insur- 
ance." But  it  is  said  in  the  same  case  that  condi- 
tions in  a  policy  of  insurance  limiting  or  avoiding 
liability  are  strictly  construed  against  the  insurer 
and  in  favor  of  the  insured.  The  courts,  not  fa- 
voring forfeitures,  are  usually  inclined  to  take  hold 
of  any  circumstances  which  indicate  an  election  to 

85.  Union  Natl.  Bank  v.  German  Ins.  Co.,  34  U.  S.  397;  71  Fed.  473; 

18  C.  C.  A.   203. 

86.  Taylor  v.  State  Ins.  Co.,  98  la.  521;  67  N.  W.  577;  60  A.  S.  R. 

210. 

German  Ins.  Co.  v.  Heiduk,  30  Neb.  288;  46  N.  W.  481;  27  A.  S. 

R.    402. 

Gray  v.  German  Co.,   155   N.   Y.   180  ;   49  N.   E.    675. 
Bourgeois  v.  Mutual  Co.,  86  Wis.  402;  58  N.  W.  38. 
Robinson  v.  Fire  Assoc.,  63  Mich.  90;  29  N.  W.  521. 
Hale  v.  Mech.  Co..   6  Gray  169;  66  A.  D.   410. 
Allemanla  Co.  v.  Kurd,  37  Mich.  11;  26  A.  R.  491. 


INSURANCE.  301 

waive  the  forfeiture.  A  waiver  may  be  created 
by  acts,  conduct  or  declarations  insufficient  to  cre- 
ate a  technical  estoppel.  If  the  company,  with 
knowledge  of  the  breach,  enters  into  negotiations 
or  transactions  with  the  assured  which  recognize 
and  treat  the  policy  as  still  in  force,  or  induces 
the  assured  to  incur  expense  or  trouble,  it  will  be 
regarded  as  having  waived  the  right  to  a  forfeit- 
ure87. 

Sec.  300.  A  policy  in  a  Michigan  case  pro- 
vided that  the  agent  of  the  insurer  had  no  author- 
ity to  waive,  modify  or  strike  from  the  policy  any 
of  the  printed  conditions,  and  procuring  addi- 
tional insurance  rendered  the  policy  void  unless 
the  consent  of  the  company  was  written  on  the  pol- 
icy. The  insured  obtained  further  insurance  upon 
the  statement  of  the  company's  agent  that  it  would 
make  no  difference  in  his  policy.  The  court  held 
the  act  of  the  agent  no  waiver  of  the  condition, 
saying  that  he  had  no  right  to  contract  with  the 
assured  so  as  to  change  the  conditions  of  the  pol- 
icy or  to  dispense  with  the  performance  of  any  es- 
sential requisite  contained  therein,  either  by  parol 
or  in  writing;  and  the  holder  of  the  policy  is  es- 
topped by  accepting  it  from  setting  up  or  relying 
upon  powers  in  the  agent  in  opposition  to  limita- 
tions and  restrictions  in  the  policy88.  The  hold- 

87.  Queen  Ins.  Co.  v.  Young,  86  Ala.  424;   5  So.  116;   1  A.  S.  R.  55. 

citing. 

Titus  v.  Glens  Falls  Co.,  81  N.  T.  410. 
Bartholomew  v.  Merchants  Co.,   25   la,   507. 
Hamilton  v.  Aurora  Co.,    15   Mo.  App.   59. 
Liverpool  Co.  v.  Sorsby,  60  Miss.  302. 

88.  Cleaver  v.  Traders  Co.,  65  Mich.  527 ;   32  N.  W.  660 ;  8  A.  S.  R. 

908,  citing: 

Merseran  v.  Phoenix  Co,  66  N.  Y.  274. 
Catoir  v.  American  Co.,  33  N.  J.  L.  487. 
But  see  this  case  cited  infra  this  subdivision. 


302  THE  LAW  OF  WAIVER. 

ings  of  the  courts  upon  this  subject,  however,  are 
far  from  uniform.  But  an  examination  of  the 
cases  will  disclose  that  the  difference  between  the 
two  lines  of  authorities  turns  more  upon  the  con- 
struction of  the  clause  restricting  the  authority  of 
an  agent  and  upon  determining  how  far  his  acts 
shall  be  binding  upon  the  company,  since  it  is 
usually  his  acts  that  are  involved,  than  it  does  upon 
establishing  a  principle  of  waiver  by  the  insurer. 
However,  a  less  reconcilable  position  is  taken  by 
the  courts  on  the  effect  of  a  failure  to  endorse  on 
the  policy  a  consent  to  additional  insurance  where 
the  policy  requires  such  indorsement  to  make  the 
consent  binding  on  the  insurer. 

Sec.  301.  We  think  that  the  better  and  more 
reasonable  rule,  and  the  one  sustained  by  the 
weight  of  authority  is  that  an  agent  authorized  to 
solicit  insurance,  countersign  and  deliver  policies 
and  collect  premiums,  may  consent  to  the  procuring 
of  additional  insurance  and  that  such  consent 
amounts  to  a  waiver  of  a  clause  in  the  policy  pro- 
hibiting the  procuring  of  further  insurance  and 
that  such  waiver  is  binding  on  the  insurer  whether 
indorsed  on  the  policy  or  not89.  As  is  said  in  May 
on  Insurance,  Art.  370:  While  the  old  rule  re- 
quired the  consent  to  be  in  writing  and  endorsed 
on  the  policy,  it  is  the  decided  tendency  of  the  mod- 
ern cases  to  hold  that  if  notice  of  the  additional  in- 
surance be  duly  given  to  the  company  or  its  agent, 
and  no  objection  is  made,  the  company  will  be  es- 
topped from  insisting  on  a  forfeiture  of  the  policy 
because  their  consent  thereto  was  not  indorsed  as 
literally  required  by  the  stipulation.  Knowledge 
of  other  subsequent  insurance  and  conduct  in- 

39.     Crescent  Ins.  Co.  v.  Griffin,  59  Tex.  509. 


INSURANCE.  303 

ducing  the  insured  to  believe  that  the  first  policy 
is  still  valid,  constitute  a  waiver  of  the  clause 
against  additional  insurance90.  So,  if  no  objection 
is  made  for  a  reasonable  time  after  knowledge  of 
the  additional  insurance  comes  to  the  company  or 
its  agent,  the  clause  is  waived91,  as  silence  is 
deemed  a  waiver92,  and  such  a  delay  for  three 
months  has  been  held  sufficient93.  A  statement  by 
an  agent  to  the  insured  after  knowledge  of  addi- 
tional insurance  that  the  former  policy  is  all  right, 
is  a  waiver  of  the  forfeiture  clause94. 

Sec.  302.  Speaking  on  the  subject  under  dis- 
cussion, a  Texas  court  has  well  expressed  the  prin- 
ciples herein  announced.  "Subsequent  insurance 
did  not  ipso  facto  annul  the  policy,  but  the  com- 
pany might  elect  to  give  it  that  effect,  or  might 
waive  it.  Having  knowledge  of  the  facts,  it  was 
the  duty  of  the  company  to  manifest  its  intention 
as  to  this  promptly,  and  having  failed  to  do  so,  it 
ought  to  be  held  to  have  waived  the  right  to  treat 
the  policy  as  null,  when  it  knew  that  by  the  act 
of  its  own  agent  the  insured  had  been  led  to  believe 
that  the  policy  was  in  full  force.  It  is  not  so  much 
by  the  force  of  the  fact  that  the  agent  gave  a 
verbal  consent  to  the  subsequent  insurance  that  the 
appellee  should  be  held  bound,  as  because  the  com- 
pany itself  must  be  held,  having  knowledge  of  what 
he  had  done,  to  have  ratified  the  consent  given  by 
him,  though  it  may  not  have  been  given  in  the  man- 
ner prescribed  by  the  policy.  If  the  policy  limited 
the  power  of  the  agent,  it  implied  no  limitation  of 

90.  Martin  v.  Jersey  City  Co.,  44  N.  J.  273. 

91.  Crescent  Co.  v.  Griffin,  supra. 

92.  Phoenix  Co.  v.  Spiers,  87  Ky.  285. 
91.  Planters  Co.  v.  Lyons,  38  Tex.  253. 

94.     Combs  v.  Shrewsbury  Co.,  34  N.  J.  Eq.  403. 


304  THE  LAW  OF  WAIVER. 

the  power  of  the  company  itself,  and,  as  said  by  the 
supreme  court  of  Michigan,  in  considering  a  condi- 
tion in  a  policy  similar  to  those  found  in  the  policy 
before  us:  'The  condition,  literally  applied,  would 
prevent  any  unindorsed  consent  by  the  company  it- 
self, by  instructions  of  its  board,  or  by  act  of  its 
officers,  as  effectually  as  by  any  one  else.  And  the 
case  seems  to  settle  down  to  the  simple  question 
whether  a  person,  who  has  agreed  that  he  will  only 
contract  by  writing  in  a  certain  way,  precludes 
himself  from  making  a  parol  bargain  to  change 
it.  The  answer  is  manifest.  A  written  bargain  is 
of  no  higher  legal  degree  than  a  parol  one.  Either 
may  vary  or  discharge  the  other,  and  there  can  be 
no  more  force  in  any  agreement  in  writing  not  to 
agree  by  parol  than  a  parol  agreement  not  to  agree 
in  writing.  Every  such  agreement  is  ended  by  the 
new  one  which  contradicts  it'  "95.  When  the  com- 
pany remains  passive  after  knowledge  of  addi- 
tional insurance,  the  insured  rests  in  security  that 
he  is  protected  and  is  deprived  of  an  opportunity 
of  fully  protecting  himself  by  obtaining  insurance 
elsewhere.  To  permit  a  forfeiture  after  such  pas- 
siveness  is  to  legalize  fraud  and  unfair  dealing96. 
The  insured  must  show  that  the  agent  has  done 
some  act  or  made  some  representation  or  remained 
silent  when  he  ought  to  have  spoken,  and  thereby 
misled  the  insured  and  induced  him  to  rely  on  the 
policy.  But  when  such  facts  are  shown  they  amount 
to  a  waiver97.  If  the  indorsement  is  not  made  upon 

95.  Morrison  v.  Insurance  Co.,  69  Tex.  353  ;  6  S.  W.  605  ;  5  A.  S.  R. 

63,  citing: 

Westchester  Co.  v.  Earle,   33   Mich.   143. 
American  Co.  v.  McCrea,  8  Lea  513;  41  A.  R.  647. 

96.  Swedish   Co.  v.   Knutson,   67   Kans.   71 ;   72   Pac.   526 ;    100  A.   S, 

R.   382. 
37.     Westchester  Co.  v.  Earle,  33  Mich.   143. 


INSURANCE.  305 

notice  duly  given  of  subsequent  insurance,  a  waiver 
will  be  presumed  in  the  absence  of  any  dissent. 

Sec.  303.  If  a  party  by  his  silence  directly 
leads  another  to  act  to  his  injury,  he  will  not  be 
permitted,  after  the  injury  has  happened,  to  then 
allege  anything  to  the  contrary,  for  he  who  will  not 
speak  when  he  should  will  not  be  allowed  to  speak 
when  he  would98.  •  In  an  extremely  carefully  con- 
sidered case  in  Wyoming,  it  is  held  that  if  a  gen- 
eral insurance  agent  who  issues  the  policy  in  suit 
has  knowledge  of,  and  consents  to  additional  in- 
surance, but  fails  to  indorse  such  consent  on  the 
policy,  and  through  neglect  fails  to  notify  his  com- 
pany thereof,  and  its  adjuster,  after  a  loss  and 
with  knowledge  of  such  additional  insurance,  and 
without  objection  thereto  seeks  to  adjust  the  loss, 
the  company  is  estopped  to  insist  on  a  forfeiture 
by  reason  of  such  additional  insurance".  And  fail- 
ure of  an  insurer  to  cancel  its  policy  after  receiving 
notice  of  a  breach  of  the  condition  against  addi- 
tional insurance  is  evidence  from  which  a  waiver 
of  the  right  of  forfeiture  may  be  inferred,  espe- 
cially when  an  attempted  cancellation  of  the  policy  is 
based  upon  another  ground  of  forfeiture100.  So, 
collecting  premiums  after  knowledge  of  such  a 
breach  is  a  waiver1.  Upon  a  second  appeal  of  the 

98.  Pelkington  v.  National  Co.,  55  Mo.  176. 

Horwitz  v.  Equitable  Co.,  40  Mo.  557  ;  93  A.  D.  321. 
Gans  v.  St.  Paul  Co.,  43  Was.  Ill ;  28  A.  R.  535. 

99.  Kahn  v.  Traders  Ins.  Co.,  4  Wyo.  419  ;  34  Pac.  1059  ;  62  A.  S.  R. 

47. 

2    May,    Insurance   370. 

Carrugi  v.  Atlantic  Co.,  40  Ga.  140 ;  2  A.  S.  R.  567. 
Weed  v.  London  Co.,  116  N.  T.  106;  22  N.  E.  229. 
100.     Phoenix  Ins.  Co.  v.  Holcomb,  57  Neb.  622;  78  N.  W.  300;  73  A. 

S.  R.  532. 

Slobdisky  v.  Phoenix  Co.,  52  Neb.  395 ;  72  N.  W.  483. 
1.     liutz  v.  Anchor  Co.,  120  la.  136 ;  94  N.  W.  274 ;  98  A.  S.  R.  149, 

dtlng: 
Ruthven  v.  American  Co.,     102  la.  550  ;   7  N.  W.  574. 


306  THE  LAW  OF  WAIVER. 

case  of  Cleaver  v.  Trader's  Ins.  Co.,  cited  in  sec- 
tion 300  hereof,  it  is  held  that  the  insurer  waives 
a  breach  of  this  condition  when,  after  notice,  it 
fails  to  notify  the  insured  of  its  intention  to  insist 
upon  a  forfeiture2.  Such,  we  think,  is  the  better 
rule3. 

C.    PAYMENT  OF  PBEMIUM— 

(1)  BEFORE  DELIVEEY  OF  POLICY— 
(a)  IN  GENERAL:— Sec.  304.  It  is  customary 
among  insurance  companies  to  authorize  their 
agents  who  solicit  insurance  and  deliver  policies, 
to  collect  the  premiums  due  therefor.  The  usual 
form  of  policy  so  delivered  provides  that  it  shall 
not  take  effect  until  the  actual  payment  of  such 
premium,  or  that  it  shall  be  void  in  case  payment 
shall  not  be  made  as  it  provides.  Such  provisions 
are  solely  for  the  benefit  of  the  insurer  and  are 
valid  and  such  as  it  has  a  right  to  insist  upon.  The 
insured  is  bound  to  take  notice  of  this  condition,  and 
in  the  absence  of  any  extenuating  circumstances  he 
fails  to  comply  with  it  at  his  peril.  But  like  any 
other  similar  right  belonging  to  the  insurer,  prepay- 
ment of  the  premium  may  be  waived  by  it,  and  here, 
too,  a  waiver  may  be  shown  by  evidence  of  any 

2.  Cleaver  v.  Traders  Ins.  Co.,   71  Mich.   414;   39  N.  W.   571;   IB  A. 

S.  R.  275. 

3.  Grubbs  v.  N.  Car.  Home  Co..   108  N.   Car.  472;   13  S.  E.  236;  23 

A.   S.   R.   62. 
Oshkosh  v.   Germania   Co..   71   Wis.   545;   37   N.   W.   819;   5  A.   S. 

R.   233. 

Fishbeck  v.  Phoenix  Co.,  54  Cal.   422. 
Penn  F.  Co.  v.  Kittle,  39  Mich.  51. 
Mut  Co.  v.  Ward,  95  Va.  231;  28  S.  E.   209. 
Bigelow  v.  Granite  Co.,  94  Me.  39;  46  Atl.  808. 
Rathbone  v.  City  Co.,  31  Conn.  193. 
Thompson  v.  Traders  Co.,  169  Mo.  12;  68  S.  W.   889. 
West  v.  Norwich  Co.,  10  Utah  442  ;  37  Pac.  685. 
Schomer  v.  Hekla  Co.,  50  Wis.  575 ;  7  N.  W.  544. 
Henschel  v.  Oregon  Co.,  4  Wash.  476 ;  31  Pac.  332,  765. 
Phoenix  Co.  v.  Johnston,  143  111.  106  ;  32  N.  E.  429. 


INSURANCE.  307 

words  or  acts  manifesting  an  intention  not  to  in- 
sist on  such  payment,  or  misleading  the  insured 
into  a  belief  that  his  policy  is  valid  and  subsisting 
even  though  it  is  not  paid  for  according  to  its  pro- 
visions. And  such  waiver  may  be  made  either 
orally  or  in  writing  by  a  regular  agent  of  the  com- 
pany authorized  to  collect  premiums,  notwithstand- 
ing a  statement  in  the  policy  that  no  agent  shall 
waive  any  condition  unless  such  waiver  be  indorsed 
on  the  policy. 

Sec.  305.  An  express  provision  in  a  policy  of 
insurance  that  the  company  shall  not  be  liable  on 
the  policy  until  the  premium  be  actually  paid  is 
waived  by  an  unconditional  delivery  of  the  policy 
to  the  assured  as  a  completed  and  executed  contract 
under  an  express  or  implied  agreement  that  a  credit 
shall  be  given  for  the  premium  and  in  such  case  the 
company  is  liable  for  a  loss  which  may  occur  during 
the  period  of  the  credit4.  And  the  assured  is  not 
bound  to  take  notice  of  conditions  in  the  policy  that 
the  premium  must  be  actually  paid,  nor  of  the  pro- 
vision that  the  waiver  of  condition  must  be  indorsed 
on  the  policy  when  the  policy  is  executed  and  de- 
livered to  him  as  a  valid  and  completed  contract  by 
an  agent  having  authority  to  countersign,  and  who, 
before  or  at  the  time  of  delivery  of  it  has  given 
the  assured  credit  by  parol;  and  if  a  loss  occurs 
before  the  credit  expires,  the  company  is  bound  not- 

4.     Farnum  v.  Phoenix  Co.,   83   Cal.   246 ;   23   Pac.   869  ;   17  A.   S.  R. 

233,  citing: 

Boehen  v.  Williamsburg  Co.,  35  N.  Y.  131;  90  A.  D.  787. 
Church  v.  Lafayette  Co.,  66  N.  Y.  222. 
Latoix  v.  Germania  Co.,  27  La.  Ann.  113. 
Miss.  Val.  Co.  v.  Neyland,  9  Bush  439. 
Heaton  v.  Manhattan  Co.,  7  R.  I.  506. 
Eagan  v.  Aetna  Co.,  10  W.  Va.  583. 
O'Brien  v.  Union  Mut.  Co.,  22  Fed.  586. 
Knickerbocker  Co.  v.  Norton,   96  U.   S.   234. 


308  THE  LAW  OF  WAIVEB. 

withstanding  the  agreement  for  credit  was  not  in- 
dorsed on  the  policy5.  It  will  be  seen,  however, 
that  in  such  cases  it  is  the  act  of  delivering  the 
policy  evidencing  an  intention  that  it  shall  take  ef- 
fect as  a  contract  of  insurance  which  constitutes  the 
waiver,  for  in  the  absence  of  such  delivery  and  in- 
tent there  can  be  no  waiver.  Up  to  the  time  of  such 
delivery  the  agreement  for  credit  is  merely  a  per- 
sonal one  between  the  agent  and  the  assured  which 
the  former  may  cancel  at  any  time  before  consum- 
mation of  the  contract  by  delivery  of  the  policy6. 

Sec.  306.  And  the  delivery  of  a  policy  without 
condition  and  without  exacting  payment  of  the 
premium  in  cash  raises  a  presumption  that  credit 
was  given7.  It  is  said  that  a  contract  of  insurance 
is  complete  when  the  assured  makes  application  for 
insurance,  the  application  is  accepted,  the  policy 
filled  out  in  duplicate,  and  the  applicant's  name  en- 
tered on  the  books  of  the  company  as  being  insured ; 
and  if  he  is  not  required  at  that  time  to  pay  the 
premium,  or  notified  of  a  stipulation  in  the  policy 
requiring  such  payment  as  a  condition  precedent  to 
its  binding  force  upon  the  company,  the  latter  will 
be  deemed  to  have  waived  such  condition8,  and  the 
practice  or  general  usage  of  the  company  not  to  re- 
quire payment  at  the  time  of  delivery  may  be  shown 

6.     Id. 

Young  v.  Hartford  Co.,  45  la.  377;  24  A.  R.  784. 

Wright  v.  Hartford  Co.,  36  Wis.  522. 

Sheldon  v.  Conn.  Mut.  Co.,  25  Conn.  207. 

Griffith  v.  N.  Y.  Life,  101  Cal.  627 ;  36  Pac.  113 ;  40  A.  S.  R.  96. 
6.     Griffith  v.  N.  Y.  Life,  supra. 

1.     Am.  Emp.  Co.  v.  Fordyce,  62  Ark.  562  ;  36  S.  W.  1051 ;  54  A.  S. 
R.   305. 

Boehen  v.  Williamsburg  Co.,  35  N.  Y.  121;   90  A.  D.  787,  citing: 

Behler  v.  German  Mut.  Co.,  68  Ind.  347. 

Miller  v.  Life  Ins.  Co.,   12  Wall.   303. 

Little  v.   Ins.  Co.,  38  Oh.  St.   110. 
8.     Pino  v.  Merchants  Mut.  Co.,  19  La.  Ann.  214 ;  92  A.  D.  529. 


.  INSURANCE.  309 

to  establish  such  waiver9;  but  the  rule  permitting 
proof  of  waiver  by  showing  a  general  custom  to  de- 
liver policies  without  pre-payment  of  the  premium 
has  been  denied10.  Where  it  is  the  custom  of  insur- 
ance companies  to  give  their  agents  time  to  pay 
over  premiums  on  policies,  and  the  agent  to  credit 
the  insured  therefor,  the  insured  becoming  indebted 
to  the  agent  and  the  agent  in  turn  to  the  company, 
a  payment  according  to  such  custom,  even  after  a 
loss,  will  be  valid,  and  the  condition  declaring  the 
policy  void  for  non-payment  of  the  premium  will  be 
held  waived11. 

Sec.  307.  The  views  herein  expressed  are  not 
without  dissent.  A  comparatively  late  case  in  New 
York  has  held  to  the  contrary,  but  the  turning  point 
in  the  case  appears  to  be  the  fact  that  the  condition 
making  payment  of  the  premium  precedent  to  the 
taking  effect  of  the  policy  and  limiting  the  author- 
ity of  agents  was  contained  in  the  application  of  the 
insured  which  was  signed  by  him,  and  thus  brought 
to  his  notice  at  the  very  inception  of  his  dealing 
with  the  insurer12.  But  insurance,  as  well  as  any- 
thing else,  may  be  sold  on  credit13,  and  the  great 
preponderance  of  authority  supports  the  proposi- 

9.     Id. 

Helme  v.  Phila.  L.  Co.,  61  Pa.  St.  107. 
Gerard  v.  Mut.  Co.,  86  Pa.  St.  236. 
Baxter  v.  Massoit  Ins.   Co.,   13  Allen,   320. 
Union  Cent.  Co.  v.  Pottker,  33  Oh.  St.  459. 
Mayer  v.  Mut.  Co.,  33  la.  344. 

10.  Busby  v.  N.  A.  Ins.  Co.,  40  Md.  572. 
Candee  v.  Citizens  Co.,  4  Fed.   143. 

Mandego  v.  Cent.  Ins.  Co..  64  la.   134 ;   17  N.  W.  656  ;  19  N.  W. 
877. 

11.  Lebanon  Mut.  Co.  v.  Hoover,   113  Pa.  St.  591 ;   8  Atl.  163  ;   57  A. 

R.  511. 

12.  Russell  v.  Prudential  Co.,  176  N.  Y.  178  ;  68  N.  E.  252  ;  98  A.  S. 

R.    657. 

13.  Wood  on  Insurance,   Sec.  28. 
May  on  Insurance,  Sec.  360  D. 
Insurance  Co.  v.  Colt,  20  Wall.  560. 


310  THE  LAW  OF  WAIVER. 

tion  first  stated,  that  the  condition  in  a  policy  of  in- 
surance that  the  policy  shall  not  become  effective 
till  the  premium  is  paid  and  denying  to  agents  the 
authority  to  waive  any  of  its  conditions  other  than 
by  written  endorsement  on  such  policy,  may  be 
waived  by  the  agent  of  the  company  and  that  such 
waiver  occurs  when  the  policy  is  delivered  to  the  in- 
sured without  exacting  payment  of  the  premium14. 

<2)     AFTEE  DELIVERY  OF  POLICY- 

(a)  THEORY  THAT  PAYMENT  AT  MA- 
TURITY MAY  BE  WAIVED:— Sec.  308.  While 
there  is  some  dissent  from  the  proposition,  the  de- 
cided weight  of  authority  is  to  the  effect  that  where 
a  policy  has  been  in  existence  as  a  binding  contract 
of  insurance,  payment  of  the  premium,  or  an  install- 
ment thereof  falling  due  thereafter,  may  be  waived 
by  the  company  or  its  authorized  agents,  even  in  the 
face  of  a  provision  in  the  policy  that  failure  to  make 
payment  at  its  maturity  shall  render  the  policy 
void.  When  such  waiver  occurs,  the  insurance  re- 
mains in  force,  and  a  variety  of  facts  and  circum- 
stances have  been  held  sufficient  to  produce  this  re- 
sult. Thus,  where  an  insurer  issued  a  circular  to 
the  effect  that  it  would  not  insist  on  a  forfeiture  for 
non-payment  of  interest  on  a  premium,  such  notice 

14.     Washoe  Mfg.  Co.  v.  Hibemia  Co.,  66  N.  Y.  613;  7  Hun.  74. 
Universal  Co.  v.  Blo^fc,  109  Pa.  St.  535. 
Equitable  Co.  v.  McCrea,  6  Lea  541   (Tcnn.). 
Carson  v.  German  Co.,  62  la.  433  ;   17  N.  W.  650. 
Tenant  v.  Traveler's  Co.,  31  Fed.   322    (Col  ). 
East  Tex.  v.  Mims,   1  Tex.   Civ.   Cas.,  Art.   1323. 
Gosch  v.  State  Mutual,  44  111.  App.  263. 
Kerlin  v.  Natl.  Assoc.,  8  Ind.  App.  628;  36  N.  E.  156. 
Stepp  v.  Nat'l.  Assoc:.  37  S.  C.  417  ;  16  S.  E.  134. 
Wytheville  Co.  v.  Feiger,  90  Va.  277;   18  S.  E.   195. 
Ball  Co.  v.  Aurora  Co.,  20  Fed.  232. 
Jones  v.  Aetna  Co.,  Fed.  Cas.  7453. 
Potter  v.  Phoenix  Co.,  63  Fed.  382. 
Daft   v.   Drew,    40   111.   App.    266. 


INSURANCE.  311 

constituted'  a  waiver  of  any  right  to  a  forfeiture  for 
failure  to  make  such,  payment15.  So,  consent  of  the 
insurer  to  an  extension  of  time  to  make  payment  is 
a  waiver16,  as  is  an  acceptance  of  payment  of  part 
of  an  over-due  premium17.  And  any  act  or  conduct 
on  the  part  of  the  insurer  leading  the  insured  to  be- 
lieve that  the  strict  letter  of  the  condition  in  the 
policy  as  to  payment  of  the  premium  is  not  to  be  in- 
sisted upon  is  sufficient  to  constitute  a  waiver  of 
prompt  payment18.  In  determining  whether  a 
waiver  has  occurred,  the  test  is  whether  an  insurer, 
by  his  course  of  dealing  with  the  assured,  or  by  the 
acts  or  declarations  of  his  authorized  agents,  has 
produced  in  the  mind  of  the  assured  an  honest  be- 
lief that  the  terms  and  conditions  of  the  policy  de- 
claring a  forfeiture  in  the  event  of  non-payment  on 
the  day  and  in  the  manner  prescribed,  will  not  be 
enforced,  but  that  payment  will  be  accepted  on  a 
subsequent  day  or  in  a  different  manner ;  and  where 
there  is  such  belief,  and  the  assured  has  acted  upon 
it,  the  insurer  will  be  estopped  from  insisting  upon 
a  forfeiture19.  So,  the  issue  of  a  certificate  after  an 
assessment  is  in  default  is  a  waiver  of  the  right  to  a 
forfeiture  for  its  non-payment20.  An  acceptance  of 

15.  Robinson  v.  St.  Louis  Mut.  Co.,  7  Rep.  358   (Mo.). 

16.  Homer  v.   Guardian   Co.,    67   N.   Y.    478. 

17.  Hodson  v.  Guardian  Co.,  97  Mass.  144;  93  A.  D.  73. 
Spitz  v.   Mutual  Co.,    25   N.  Y.   Supp.   469. 

18.  So.  Ins.  Co.  v.  McCain,   96  U.  S.  84. 
Appleton  v.  Phoenix  Co.,  59  N.  H.  541. 

Hastings  v.  Brooklyn  Co.,   138  N.  Y.   473  ;   31  N.  B.   289. 

Steele  v.  Ins.  Co.,  3  Mo.  App.  207. 

Protection  Co.  v.  Poote,  79   111.  361. 

Insurance  Co.  v.  Tullidge,  39  Oh.  St.  240. 

Insurance  Co.  v.  Eggleston,  96  U.  S.  572. 

Phoenix  Co.  v.  Doster,  106  U.  S.  30 ;  1  Sup.  Ct.  R.  18 ;  27  L.  Ed.  65. 

Cotton  States  Co.  v.  Lester,  62  Ga.  247. 

Home  Prot.  Co.  v.  Avery,  85  Ala.  348 ;   5  So.   143. 

19.  Bacon:  Benevolent  Soc.  Etc.,  Art.  433  and  cases  cited. 

20.  Id. 

Roswell  v.  Equitable,  13  Fed.  840. 


312  THE  LAW  OF  WAIVER. 

a  past-due  payment  is,  of  course,  a  waiver  of  any 
breach  of  condition  as  to  payment  known  by  the  in- 
surer at  the  time21 ;  although  such  acceptance  is  not 
a  waiver  where  the  breach  is  unknown  to  the  in- 
surer at  the  time22. 

Sec.  309.  An  ingenious  attempt  has  been  made 
in  some  policies  to  avoid  a  waiver  of  non-payment 
of  a  premium  on  account  of  acceptance  of  past-due 
premiums  by  a  statement  in  the  policy  that  such  ac- 
ceptance shall  be  considered  as  an  act  of  grace  or 
courtesy  on  the  part  of  the  insurer  and  not  binding 
as  to  future  payments.  This  ingenuity  has  fallen 
short  of  its  mark,  and  courts  still  hold  the  insurer 
to  a  waiver23. 

Sec.  310.  A  harder  question  to  determine,  how- 
ever, is  whether  the  agent  had  authority  to  waive 
the  time  of  payment  of  the  premium.  For  it  is  said 
that  the  fact  that  the  agent  solicited  the  insurance, 
delivered  the  policy  and  collected  the  original  pre- 
mium does  not  impliedly  give  him  power  to  waive  a 
forfeiture  for  non-payment,  even  if  he  had  author- 
ity to  collect  the  subsequent  premiums24.  This  prin- 
ciple was  declared  in  an  Iowa  case25.  But  there  a 

21.  Mershon  v.   National,  34  la.   87. 

Phoenix  Co.  v.  Lansing,  15  Neb.  494;  20  N.  W.   22. 
Pomeroy  v.  Rocky  Mt.  Co.,  9  Colo.  295  ;  12  Pac.  153. 
McGurk  v.  Met.  Co.,  56  Conn.   528  ;   16  Atl.   263. 
Rice  v.  N.  Eng.   Soc.,   146  Mass.   248  ;   15  N.  E.   624. 
Painter  v.  Ind.  Assoc.,  131  Ind.  68 ;  30  N.  E.  878. 
Met.  Co.  v.  Windover,  137  111.  417;  27  N.  E.  538. 
Proelich  v.  Atlas  Co.,  47  Mo.  406. 

22.  Gilbert  v.  N.  Am.  Co.,  23  Wend.  43. 
Robertson  v.  Met.  Co.,   88  N.  Y.  541. 
McDonald  v.  Sup.  Council,  78  Cal.  49 ;  20  Pac.  41. 

23.  American  Co.  v.  Green,  57  Ga.  469. 
Thompson   v.   St.   Louis   Co.,    52   Mo.   469. 

24.  Met.  Co.  v.  McGrath,  52  N.  J.  L.  318;  19  Atl.  386. 
Union  Co.   v.  McMullen,   24  Oh.   St.   67. 

Lewis  v.  Phoenix  Co.,  44  Conn.  72. 
Maryland  v.  Royal  Co.,  71  Pa.  St.  393. 

25.  Critchett  v.  Am.  Ins.  Co.,  53  la.  404  ;  5  N.  W.  543  ;  36  A.  S.  R. 

230. 


INSURANCE.  313 

dissenting  opinion  was  entered  by  Beck,  J.,  wherein 
better  reasons  were  given,  in  the  writer's  opinion, 
than  those  held  to  by  a  majority  of  the  court.  In 
the  dissenting  opinion  it  was  said :  ' '  The  agent  was 
authorized  to  collect  the  premiums.  It  cannot  be 
doubted  that  if  the  plaintiff  had  paid  to  the  agent 
the  premium  after  default,  the  policy  would  have 
again  attached.  The  agent  could  have  enforced  the 
payment  under  the  terms  of  the  policy.  Thus  far 
he  was  clothed  with  authority  upon  the  exercise  of 
which,  at  his  discretion,  depended  the  binding  force 
of  the  policy.  His  authority  to  collect  the  premium 
could  be  exercised  in  such  a  manner  and  at  such 
times  as  the  interest  of  the  defendant,  determined 
by  the  agent,  required.  Surely  the  authority  to  col- 
lect the  premium  was  not  so  limited  that  it  could  not 
have  been  exercised  after  a  default  by  the  plain- 
tiff." 

Sec.  311.  The  rule  is  general  among  the  courts, 
however,  that  if  an  agent  collect  a  premium  after  it 
is  due  and  forward  it  to  the  company  which  accepts 
it  with  knowledge  that  it  is  over-due  and  that  a  for- 
feiture for  that  reason  might  be  invoked,  such  act  of 
the  agent  is  a  waiver  of  the  delay  in  payment,  and 
the  acceptance  by  the  company  is  a  ratification  of 
the  waiver.  And  in  such  case  it  is  of  no  consequence 
whether  or  not  the  agent  had  power  to  waive  the 
condition  in  the  first  instance26. 

(b)  BY  CUSTOM:— Sec.  312.  The  decisions 
are  inharmonious  as  to  whether  evidence  of  a  cus- 
tom or  practice  among  insurance  companies  to  re- 
ceive payment  of  premiums  after  their  maturity 

26.     Walls  v.  Home  Ins.  Co.,  114  Ky.  611;   71  S.  W.  650. 
Piedmont  Co.  v.  Lester,  59  Ga.  812. 
Cronln  v.  Fire  Assoc.,  119  Mich.  74 ;  77  N.  W.  648. 
Chicago  Co.  v.  Ford,  104  Tenn.  533;  58  S.  W.  239. 


314  THE  LAW  OF  WAIVER. 

may  be  shown  to  establish  a  waiver  of  a  breach  of 
the  condition  as  to  such  payment.  It  is  thought, 
however,  that  one  of  the  main  ingredients  which 
permeates  the  whole  field  and  phase  of  the  law  of 
Waiver  is  applicable  here :  That  any  conduct  of  one 
party  calculated  to  lull  the  other  into  a  feeling  of 
security  and  belief  that  a  right  of  the  former  would 
not  be  insisted  upon  may  be  shown  to  establish  a 
waiver  of  that  right.  So,  if  the  practice  of  the  com- 
pany and  its  course  of  dealings  with  the  assured 
and  others  known  to  the  assured  have  been  such  as 
to  induce  a  belief  that  so  much  of  the  conduct  as 
provided  for  a  forfeiture  in  the  event  of  non-pay- 
ment of  the  premium  will  not  be  insisted  upon,  the 
company  cannot  urge  a  forfeiture  for  such  non-pay- 
ment27. This  is  especially  true  if  the  company  has 
been  in  the  habit  of  accepting  and  retaining  belated 
payment  of  premiums28,  although  it  is  held  other- 
wise if  such  acceptance  is  conditional29. 

Sec.  313.     There  are  a  few  cases  holding  con- 
trary to  the  foregoing  principles30,  but  the  weight 

27.  2  May,  Insurance,  361. 

Lebanon  Mut.  Go.  v.  Hoover,  113  Pa.  St.  591 ;  8  Atl.  163. 
Frankle  v.  Pa.  Fire  Co.,  12  Ins.  L.  J.  614   (Col.). 

28.  Stylow  v.  Wisconsin  Co.,  69  Wis.  224;  34  N.  W.  151. 
Longbridge  v.  la.   Mut.,   84  la.   141;   50  N.   W.   668. 
Grossman  v.  Mass.  B.  A.,  143  Mass.  435 ;  9  N.  E.  753. 
Spoeri  v.  Mass.  B.  A.,  39  Fed.  752. 

McCorkle  v.  Tex.  Ben.  A.,  71  Tex.   149;   8  S.  W.  516. 
Odd.  F.  Assoc.  v.  Swetzer,  117  Ind.  97;   19  N.  E.  722. 
Brooklyn  Co.  v.  Bledstone,   25  Ala.   538. 
Appleton  v.  Phoenix  Co.,   59  N.  H.   541. 
Ala.  Gold  Co.  v.  Garmany,  74  Ga.  51. 
Helme  v.  Ins.  Co.,   61  Pa.  St.  107. 
Mound  City  Co.  v.  Twining,   19  Kans.   349. 

Hartford  Co.  v.  Nussell,   144  U.  S.  439;   12  Supt.  Ct.  R.  617;   36 
L.  Ed.  496. 

29.  Lewis  v.  Phoenix  Co.,  44  Conn.  73. 

30.  Mandego  v.  Centen.  Co..  64  la.  134 ;  17  N.  W.  656 ;  19  N.  W.  877. 
Brown  v.  Mass.  Mut.,  59  N.  H.  298. 

Ormond  v.  Ins.  Co..  96  N.  Car.  158 ;  1  S.  E.  796. 
Hambleton  v.  Home  Co.,   6   Biss.   94    (U.   S.). 


INSURANCE.  315 

of  authority  is  so  decided  that  it  is  not  deemed  ad- 
visable to  take  further  note  of  these. 

(3)  WAIVER  OF  CASH  PAYMENT :— Sec. 
314.  A  general  agent  of  an  insurance  company, 
whose  business  it  is  to  solicit  applications  for  in- 
surance and  receive  first  premiums,  has  the  right 
to  waive  the  condition  requiring  payment  in  money, 
and  to  accept  the  promissory  note  of  the  applicant 
or  of  a  third  party  in  lieu  thereof,  or  to  undertake 
to  make  payment  to  the  company  himself ;  and  when 
the  cash  payment  is  actually  waived  in  either  of 
these  modes,  the  contract  binds  the  company  not- 
withstanding the  recital  in  the  policy  that  it  is  not 
binding  until  the  first  premium  is  paid  in  cash31. 
And  an  agent  authorized  to  collect  premiums  may 
exercise  his  discretion  in  such  collection  and  accept 
a  check  or  note  in  lieu  of  money  and  thereby  the 
company  will  be  bound  even  in  the  face  of  a  con- 
trary provision  in  the  policy32.  There  is  no  good 
reason  why  insurance  may  not  be  sold  on  credit  the 
same  as  any  other  property.  And  where  a  policy  is 
delivered  without  exacting  payment,  the  assumption 
is  that  credit  is  extended  and  the  policy  is  valid33, 
even  contrary  to  the  express  provision  in  the  pol- 
icy34. 

31.  Valley  Life  Co.  v.  Neyland.   9  Bush  430. 
Insurance  Co.  v.  Colt,  20  Wall.  560. 
Bragdon  v.  Ins.  Co..   42   Me.   262. 

Wood  v.  Poughkeepsie  Co.,  32  N.  T.  619. 

32.  Taylor  v.  Merchants  Co.,  9  How.  390   (U.  S.). 

33.  Latoix  v.  Germania  Co..  27  La.  Ann.  113. 
Miller  v.  Insurance  Co.,  12  Wall.  285. 
Insurance  Co.  v.   Colt,   20  Wall.   560    (U.  S.). 

84.     Home  Co.  v.  Oilman.  112  Ind.   7 :  32  N.  E.  118. 
Mut.  Ben.  Co.   v.   French,   30  Oh.   St.   240. 
Pitt  v.  Berkshire  Co..   100  Mass.   500. 
Mowry  v.  Home  Co.,   9  R.  I.  346. 


316  THE  LAW  OF  WAIVEB. 

3.    FORFEITURES— 

A.  IN  GENERAL:— Sec.  315.  The  conditions 
inserted  in  an  insurance  policy  and  hereinbefore 
considered  are  for  the  benefit  of  the  insurer  and 
may  be  insisted  upon  by  it  and  performance  to  their 
strict  letter  exacted.  Any  default  in  compliance 
with  such  conditions  renders  the  policy  void — not 
ipso  facto  void  but  according  to  the  better  view,  the 
insurer  has  the  right  to  declare  it  no  longer  in  force. 
Forfeitures  are  odious  to  the  law  and  will  never  be 
enforced  unless  there  is  the  clearest  evidence  that 
such  was  the  intention  of  the  parties.  And  if  an  in- 
surance company,  after  knowledge  of  any  default 
for  which  it  might  terminate  the  contract  of  insur- 
ance, enters  into  negotiations  or  transactions  with 
the  assured  which  recognize  the  continued  validity 
of  the  policy,  and  treat  it  as  still  in  force,  the  right 
to  claim  a  forfeiture  for  such  previous  default  is 
waived35.  So,  the  majority  of  the  courts  hold  that 
it  is  the  duty  of  the  insurer  to  take  action  when  a 
cause  for  forfeiture  comes  to  its  knowledge,  and 
that  it  must  use  reasonable  diligence  in  manifesting 
an  intention  to  rely  on  the  forfeiture.  And  if  it 
fails  to  notify  the  insured  that  it  elects  to  hold  him 
to  the  forfeiture,  its  lack  of  such  action  may  right- 
fully be  taken  by  the  insured  as  conclusive  of  the 
fact  that  the  forfeiture  is  not  to  be  insisted  upon. 
So,  if  a  company  accept  payment  of  premiums  after 
knowledge  of  its  right  to  declare  a  forfeiture,  the 

35.     Conigland  v.  N.  Car.  Co.,  Phill.  Eq.  341 ;  98  A.  D.  89. 

Murray   v.    Home    Ben.    AB.(    90    Cal.    402;    27   Pac.    309;    25   A.   S.    R. 
133,  citing: 

Viele  v.  Germania  Co..  26  la.  9  :  96  A.  D.  83. 

Queen  Ins.  Co.  v.  Young,  86  Ala.  424;   11  A.  S.  R.  51 ;  5  So.  116. 

Titus  v.   Glens  Falls   Co.,   81   N.   T.    419. 


INSURANCE.  317 

forfeiture  is  thereby  waived36.  This  effect  also  fol- 
lows a  failure  to  cancel  a  policy  for  a  reasonable 
time  after  knowledge  of  a  cause  for  forfeiture  has 
been  brought  home  to  the  insurer37. 

Sec.  316.  It  has  been  held,  however,  that  a 
breach  of  any  of  the  conditions  of  a  policy  by  the 
insured  ipso  facto  annulled  the  insurance  in  the  ab- 
sence of  any  affirmative  action  of  the  insurer  to  re- 
vive it38.  But  such  doctrine  is  not  well  reasoned  nor 
well  supported.  In  this  connection,  as  in  the  waiver 
of  any  condition  as  before  considered,  knowledge 
of  a  cause  for  declaring  a  forfeiture  brought  home 
to  an  agent  is  imputed  to  his  principal,  and  is  bind- 
ing upon  it39. 

B.  INDORSEMENT  OF  WAIVER  ON  POL- 
ICY : — Sec.  317.  Policies  of  insurance  provide  that 
no  waiver  shall  be  binding  upon  the  insurer  unless 
by  indorsement  of  same  on  the  policy.  Much  dif- 
ficulty has  been  experienced  by  the  courts  in  deter- 
mining whether  a  cause  for  forfeiture  may  be 
waived  in  any  other  manner  in  the  face  of  this  pro- 
vision. It  was  early  held  in  California  that  it  could 

36.  Ins.  Co.  v.  Norton,  96  U.  S.   234. 
Nat'l.  Assoc.  v.  Jones,  84  Ky.  110. 

Germania  Co.  v.  Hick,  125  111.  351 ;  17  N.  E.  792  ;  8  A.  S.  R.  384. 
Bankers  Assoc.  v.  Stapp,  77  Tex.  517;  14  S.  W.  168;  19  A.  S.  R 

772. 

Millard  v.  Sup.  Council,  81  Cal.  340;  22  Pac.  864. 
Tobin  v.  West.  Aid  Soc.,  72  la.  261;  33  N.  W.  663. 
American  Soc.  v.  Helburn.  85  Ky.  1 ;  2  S.  W.  495 ;  7  A.  S.  R. 

571. 

Rice  v.  N.  Eng.  Soc.,  146  Mass.  249  ;  15  N.  E.  624. 
Rindge  v.  N.  Eng.  Soc.,  146  Mass.  286;  15  N.  E.  628. 

37.  Hanover  Co.  v.  Dole,  20  Ind.  App.  333  ;  50  N.  E.  429. 
Nedrow  v.  Farmer's  Co.,  43  la.  24. 

Phoenix  Co.  v.  Coomes,  14  Ky.  L.  R.  603  ;  20  S.  W.  900. 

88.  Johnson  v.  American  Co.,  41  Minn.   396;  43  N.  W.   59. 
West  End  Co.  v.  American  Co.,   74  Fed.   114. 

89.  Norris  v.  Hartford  Co.,    57  S.   Car.   358;   35  S.  E.   672. 
Anthony  v.  Ger.-Am.  Co.,  48  Mo.  App.   65. 

Eagle  Co.  v.  Globe  Co..  44  Neb.  380;  62  N.  W.  895. 

Phoenix  Co.  v.  Coffman,  10  Tex.  Civ.  App.  631;  32  S.  W.  810. 


318  THE  LAW  OF  WAIVER. 

not40 ;  although  the  reverse  doctrine  is  now  adhered 
to41.  And  several  states  have  held  in  effect  that 
even  if  the  agent  had  power  to  waive  conditions  in 
a  policy,  no  notice  given  to  him  or  agreement  made 
by  him  as  to  a  forfeiture  can  have  any  binding  ef- 
fect unless  the  waiver  is  indorsed  on  the  policy42. 

Sec.  318.  But  the  weight  of  authority  is  in  sup- 
port of  a  contrary  doctrine.  The  agent  effecting  the 
insurance,  delivering  the  policies  and  collecting  the 
premiums  is  the  representative  of  the  company.  He 
gets  his  pay  in  commissions  from  it.  And  as  in  all 
other  classes  of  agencies,  his  knowledge  is  that  of 
his  principal,  and  his  acts  are  binding  upon  it  if  per- 
formed while  in  the  discharge  or  furtherance  of  the 
business  intrusted  to  him.  Usually  he  is  the  only 
one  in  the  community  to  whom  those  insured  may 
look  in  transactions  relating  to  the  insurance.  In 
fact,  as  far  as  the  insured  is  concerned,  he  is  the 
company,  with  full  power  to  deal  in  insurance.  So, 
therefore,  where  the  insured  gives  all  necessary  in- 
formation to  the  agent  and  makes  known  to  him  any 
cause  for  which  the  policy  might  be  forfeited,  a 
waiver  by  the  agent  is  binding  on  the  insurer 

40.  Enos  v.  Sun  Co..  67  Cal.  621 ;  8  Pac.  379. 

41.  Wheaton  v.   N.   Brit.   Co..   76   Cal.   415;    18   Pac.    758;-  9   A.    S.   R 

216. 

42.  Melga  v.  London  Co..  126  Fed.  781. 

Liverpool   Co.  v.   Richardson.   11    Okla.   585;    69   Pac.    938. 

Moore  v.  Hanover  Co.,  141  N.  Y.  219;  36  N.  E.  191. 

Manchester  v.  Guardian  Co.,  151  N.  Y.  88  ;  45  N.  E.  381 ;  56  A. 

S.   R.   600. 

Pendar  v.  American  Co.,  12  Gush.  469. 
Egan  v.  Westchester  Co.,  28  Oreg.  289 ;  42  Pac.  611. 


INSUEANCS.  319 

whether  the  agent  indorsed  such  waiver  on  the  pol- 
icy or  failed  and  neglected  to  do  so43. 

4.  NOTICE  OF  LOSS :— Sec.  319.  Insurance 
policies  contain  provisions  that  after  a  loss  notice 
thereof  must  be  given  to  the  insurer  within  a  speci- 
fied time  and  in  a  designated  manner.  The  giving 
of  such  notice  is  a  condition  precedent  to  the  right 
of  recovery,  and  a  failure  to  perform  the  condition 
in  the  specified  time  or  manner  defeats  all  right  to 
recover  on  the  policy.  The  condition  may  also  be 
contained  in  the  charter  of  the  company  with  like 
effect.  But  it  is  said  that  where  such  notice  is  re- 
quired, failure  to  give  it  in  the  designated  time  or 
manner  is  not  a  cause  for  forfeiture  unless  spe- 
cifically so  provided44. 

A.  SILENCE  OF  INSURER,  OR  FAILURE 
TO  OBJECT  NOT  A  WAIVER:— Sec.  320.  Fre- 
quently the  question  arises  as  to  what  effect  is  to  be 
given  to  the  conduct  of  an  insurer  in  remaining 
silent  or  raising  no  objection  to  the  delinquency  of 
the  insured  in  serving  upon  the  insurer,  within  the 
specified  time,  notice  of  a  loss  under  the  policy.  It 
is  said  that  no  duty  to  speak  devolves  upon  the  in- 
surer when  the  insured  is  in  default  in  the  perform- 
ance of  this  condition,  either  by  his  failure  to  give 
the  notice  in  time  or  to  give  it  at  all.  "Whether  the 
company  is  silent  or  makes  objection  cannot  alter 

43.  Morrison  v.  Ins.  Co.,   69  Tex.  353  ;   6  S.  W.   605  ;   5  A.  S.  R.   63. 
Hartford  Co.  v.  Landfare,  63  Neb.  559;   88  N.  W.   779. 
Morgan  v.  Illinois  Co..  130  Mich.  427;  90  N.  W.  40. 
Maryland  Co.  v.  Gusdorf,   43  Md.   506. 

Liquid  Mfg.  Co.  v.  Phoenix  Co.,   126  la.   225  ;   101   N.  W.   749. 

Barnard  v.  National  Co.,   38  Mo.  App.   106. 

Mentz  v.  Lancaster  Co.,   79  Pa.   St.  475. 

PlK>enix  Co.  v.  Hart,  149  111.  515;  39  111.  App.  517;  36  N.  E.  990. 

Refstrake  v.    Cumberland   Co.,    44    N.    J.   L.    294. 

Penn.  Co.  v.  Faires,  13  Tex.  Civ.  App.  Ill ;  35  S.  W.  55. 

44.  Coventry  Co.  v.  Evans,  102  Pa.   St.  281. 


320  THE  LAW  of  WAIVER. 

the  right  of  the  parties.  If  the  notice  is  too  late, 
there  is  an  end  to  the  matter.  The  want  of  such 
a  notice  cannot  be  supplied.  Of  what  avail  to  the 
assured  to  be  told  that  the  notice  was  insufficient? 
that  it  was  too  late?  How  could  the  silence  of  the 
insurance  company  be  construed  as  an  admission 
that  the  notice  was  in  time?  It  was  not  the  duty  of 
the  insurance  company  to  make  any  objection  to  the 
want  of  notice.  It  was  made  the  duty  of  the  assured 
to  give  the  notice,  and  neither  silence  on  the  part  of 
the  company  nor  positive  objections  would  alter  its 
character  or  sufficiency"45.  Under  a  written  provi- 
sion of  a  policy  that  written  notice  of  a  loss  should 
be  given  within  twenty  days  after  its  occurrence, 
an  oral  notice  to  the  company's  agent  within  the 
time,  followed  by  a  written  notice  to  the  company 
after  the  time,  was  held  not  to  be  a  compliance  with 
the  condition,  and  a  neglect  of  the  company  to  ob- 
ject did  not  waive  its  right  to  defend  on  account  of 
such  non-compliance  with  the  condition46.  So,  the 
remark  of  the  president  of  the  company,  made  sev- 
enteen months  after  a  loss,  that  the  company  would 
be  disposed  to  do  what  was  right,  and  that  they 
knew  at  the  time  of  the  fire  that  it  was  their  loss 
and  were  surprised  that  they  were  not  notified,  was 
held  not  a  waiver  of  the  condition  requiring  notice 
of  loss  within  thirty  days47.  Nor  does  a  waiver 
occur  where  the  insurer,  after  receiving  a  belated 
notice  of  a  loss,  gives  to  the  insured  directions  about 
making  out  a  statement  of  his  loss,  and  has  its 
agent  make  an  investigation  as  to  the  same48. 

45.  St.  Louis  Ins.  Co.  v.  Kyle,  11  Mo.   278;   49  A.  D.  74. 
Knickerbocker  Co.  v.  Gould,  80  111.  388. 

46.  Cornell  v.  Milwaukee  Co.,  18  Wls.  393. 

47.  Smith  v.  Haverhlll  Mut.  Co.,  1  Allen  297 ;  79  A.  D.  733. 

48.  Trask  v.  State  F.  &  M.  Co..  29  Pa.  St.  198;  72  A.  D.  62*. 


INSURANCE.  321 

And  it  is  said  that  a  waiver  of  this  condition  does 
not  occur  where  the  agent  of  the  insurer,  having 
knowledge  of  a  loss,  informs  the  insured  that  the 
company  is  attending  to  it  and  that  it  can  be  col- 
lected, if  the  policy  declares  that  no  agent  shall  have 
power  to  waive  a  breach  of  this  condition49. 

Sec.  321.  This  is  in  line  with  those  authorities 
holding  that  agents  for  the  purpose  of  soliciting  in- 
surance, delivering  policies  and  collecting  premiums 
are  not  agents  for  the  purpose  of  receiving  notice 
or  adjusting  losses,  such  cases  holding  that  notice 
to  the  agent  of  a  loss  is  not  notice  to  the  insurer50. 
After  the  insured  had  failed  and  neglected  to 
forward  notice  of  a  loss  within  the  required  time, 
he  sent  proofs  of  the  loss  to  the  general  manager  of 
the  company  who  retained  the  proofs  but  notified 
the  insured  that  the  company  denied  all  liability 
under  the  policy,  and  this  was  held  no  waiver  of  the 
failure  of  the  insured  to  give  the  notice  within  the 
required  time51.  So,  a  vote  of  the  directors  of 
the  company  to  indefinitely  postpone  consideration 
of  a  loss  is  no  waiver  of  a  breach  of  the  condition52. 

B.  CONTEAEY  VIEW:— Sec.  322.  But  a 
great  contrariety  of  opinion  exists  as  to  the  sub- 
ject here  being  considered,  and  the  authorities  are 
rather  equally  divided.  As  opposed  to  the  views 
hereinbefore  expressed,  it  is  said  that  the  insertion 
of  the  condition  in  the  contract  requiring  notice  of 

49.     Quinlan  v.  Providence  Co.,  133  N.  T.  356;  31  N.  B.  31;  28  A.  8. 

R.  645. 

Titus  v.  Glens  Falls  Co..  81  N.  T.  411. 

60.     Bowlin  v.  Hekla  Ins.  Co.,  36  Minn.  433 ;  31  N.  W.  859. 
Shapiro  v.  Western  Co..  51  Minn.  239 ;  53  N.  W.  463. 
Shapiro  v.  St.  Paul  Co.,  63  N.  W.  614   (Minn.). 
SI.     Ermentrout  v.  Glrard  Co.,  63  Minn.  305;  65  N.  W.  6S5; 

A.   346. 
12.     Patrick  v.  Farmers  Co..  43  N.  H.   621 ;   80  A.  D.  197. 


322  THE  LAW  OF  WAIVER. 

a  loss  in  a  certain  time  is  for  the  advantage  of  the 
insurer  and  may  be  insisted  upon  by  it  or  waived 
at  its  option;  and  that  a  waiver  will  be  inferred 
from  any  conduct  of  the  insurer  manifesting  an  in- 
tention not  to  insist  upon  the  forfeiture  on  account 
of  the  absence  of  such  notice.  Thus,  after  a  failure 
to  transmit  notice  as  required  by  the  policy,  proofs 
were  sent  to  the  insurer  which  were  received  by  it 
and  others  called  for,  such  conduct  being  consistent 
only  with  an  intention  to  consider  the  contract  as 
still  in  force,  the  breach  of  condition  as  to  notice 
was  held  waived53.  Also,  it  was  waived  where 
the  company  furnished  blanks  upon  which  to 
make  the  proofs54,  accepted  the  proofs  of  loss55, 
or  required  further  proofs  or  information56, 
or  paid  part  of  the  amount  due  under  the  policy57, 
made  an  examination  and  a  schedule  of  the  burned 
property58,  sent  an  agent  to  adjust  the  loss59. 
And  it  is  said  that  it  makes  no  difference  whether 
the  notice  is  required  by  statute,  charter  or  by  the 
policy,  the  provision  is  still  for  the  benefit  of  the  in- 
surer and  may  be  waived  by  it60.  Such  waivers, 
it  is  said,  may  be  made  by  an  adjusting  agent,  even 
though  the  policy  provide  that  no  act  or  statement 
of  an  agent  shall  be  binding  upon  the  insurer61. 


53.  Trippe    u.    Provident    Soc.,    140    N.    Y.    23;    35    N.    B.    316:    28    L.    R. 

A,    432. 

54.  Traveler's  Co.  v.  Edwards,   122  U.  S.   457;   30  L.  Ed.  1178. 
65.     Nuthank  v.  Traveler's  Co.,  4  Biss.  357. 

Jones  v.  Howard  Ins.  Co.,  117  N.  Y.   103;   22  N.  E.   578. 

56.  Titus  v.  Glens  Falls  Co.,  81  N.  Y.   410. 
Armstrong  v.  Agr.   Co.,   130  N.  Y.  560  ;   29   N.  E.   991. 

57.  Westlake  v.  St.  Lawrence  Co.,  14  Barb.  206. 

58.  Badger  v.  Glens  Palls  Co.,  49  Wis.  389 ;  5  N.  W.  845. 
Beatty  v.  Lycomlng,   66  Pa.  St.  9. 

59.  Honie  Ins.  Co.  v.  Myer.  98  111.  271. 

60.  Lewis  v.   Monmouth   Co.,    52   Me.   492. 

61.  Stevens  v.  Citizens  Co.,  69  la.  658 ;  29  N.  W.  769. 


INSURANCE.  323 

C.  DISTINCTION  BETWEEN  NOTICE 
OUT  OF  TIME  AND  NOTICE  DEFECTIVE  IN 
FOEM:— Sec,  323.  It  is  asserted  that  failing  to 
give  the  required  notice,  or  giving  it  out  of  time, 
stands  on  a  different  footing  from  the  giving  of 
notice  in  a  different  form  from  that  required  by  the 
policy ;  and  while  there  is  a  difference  of  opinion  as 
to  waiving  the  requirements  as  to  the  time  of  giv- 
ing notice  the  authorities  are  quite  distinct  that  if 
the  notice  given  is  defective  or  erroneous,  and  the 
company  put  its  refusal  to  pay  on  other  grounds, 
such  is  a  waiver  of  the  condition  as  to  notice62, 
and  that  an  objection  on  account  of  error  in  the 
notice,  not  made  till  the  trial,  was  held  to  be  waived63. 
The  Patrick  case  above  cited  is  comparatively 
an  early  case  involving  this  subject,  but  its 
reasoning  is  sound.  The  opinion  states:  "A  de- 
fect in  the  time  of  notice  stands  on  different  ground 
from  a  defect  in  its  matter;  while  the  last,  upon 
notice,  may  be  remedied,  it  is  otherwise  with  the 
former,  which  is  necessarily  irremediable  if  the  in- 
surer chooses  to  insist  upon  it.  It  may  be  waived, 
but  it  would  be  reasonable  to  require  a  different 
kind  of  evidence  from  that  which  ought  to  be  satis- 
factory in  cases  of  mere  defect  in  form.  The 
silence  of  an  insurance  company,  upon  a  defect  in 
form  of  the  notice,  might  be  very  injurious  to  the 
insured,  but  it  is  not  at  once  seen  how  the  assured 

62.  Patrick  v.  Farmers  Co.,  43  N.  H.  621;   80  A.  D.  197,  citing: 
Bumstead  v.  Dividend  Co.,   12  N.  Y.  81. 

Schenk  v.  Mercer  Co.,   24  N.  J.  L.  447. 
Bilbrough  v.  Met.   Co.,   5   Duer,   587. 

63.  Id. 

Kernochan  v.  N.  Y.  Bowery  Co.,  17  N.  Y.  428. 
Clark  v.  N.  Ens:.  Ins.  Co.,  fi  Gush.  342  ;  53  A.  D.  44. 
Peoria  M.  Co.   v.  Lewis,   18  111.   553. 
Underbill  v.  Agawam  Co.,   6  Gush.   495. 
Noyes   v.   Washington    Co.,    30   Vt.    659. 


324  THE  LAW  OF  WAIVER. 

could  be  benefitted  by  notice  that  he  had  failed  to 
give  information  of  his  loss  within  the  stipulated 
time,  or  how  he  could  be  prejudiced  by  the  omis- 
sion."64. 

5.    PROOFS  OF  LOSS: 

A.    FAILURE  TO  FILE  ANY  PROOFS— 

(1)  IN  GENERAL:— Sec.  324.  Nearly  all 
policies  of  insurance,  whether  of  property  or  of 
life,  require  that  proof  of  loss  under  the  policy 
shall  be  made  within  a  designated  time,  with  the  pro- 
viso that  if  same  be  not  made  in  the  required  time 
no  liability  shall  attach  to  the  insurer.  This  pro- 
vision is  permissible  under  the  law  and  when  ac- 
cepted by  the  insured  is  binding  upon  him.  But  it 
is  a  condition  imposed  for  the  sole  benefit  of  the 
insurer,  and  it  has  the  option  of  insisting  upon  the 
requirement  or  waiving  it  as  it  sees  fit.  And  when 
a  loss  has  occurred,  and  there  is  such  conduct  on 
the  part  of  the  insurer  or  its  authorized  agent  as 
induces  the  assured  reasonably  to  believe  that 
proofs  of  loss  were  not  to  be  demanded,  and  he,  act- 
ing under  such  belief,  fails  to  furnish  such  proof  or 
to  furnish  it  in  the  required  time,  his  default  or 
delinquency  is  waived  by  the  insurer65.  What- 
ever difference  may  exist  among  the  courts  as  to  a 
waiver  of  the  provision  requiring  the  assured  to 
give  notice  of  a  loss,  nearly  all  the  authorities  agree 
that  the  condition  as  to  furnishing  proofs  of  loss 
may  be  waived  either  expressly  or  by  acts  and  con- 
duct of  the  insurer  or  its  agent,  and  that  such 
waiver  may  be  inferred  from  any  acts  or  conduct 


64.     Patrick  v.  Farmers  Ins.  Co.,  supra. 

66.     Hartford  Co.  v.  Keating.  86  Md.  130  ;  38  Atl.  29  ;  63  A.  S.  R.  499. 


INSUKANCE.  325 

inconsistent  with  an  intention  to  insist  on  a  strict 
compliance  with  the  condition66. 

(2)  BY  DENIAL  OF  LIABILITY :— Sec.  325. 
It  is  a  general  rule,  subject  to  but  few  exceptions, 
that  if  the  insurer,  prior  to  the  time  limited  for  sub- 
mitting proofs  of  loss  by  the  insured,  denies  any 
liability  under  the  policy,  such  denial  constitutes 
a  waiver  of  the  requirement  of  the  policy  as  to  sub- 
mitting such  proof67.  Thus,  where  an  insurer, 
with  knowledge  of  a  loss  under  a  policy,  refuses  to 
pay  the  loss  under  a  contention  that  the  policy  was 
not  in  force  at  the  time  of  the  loss,  the  necessity 
of  furnishing  proofs  of  the  loss  is  dispensed  with68. 
And  where  the  agent  of  the  insurer  examined 
at  the  place  of  the  loss  the  facts  connected  with  it 
and  told  the  assured  that  he  could  not  recommend 
payment  of  the  loss  for  certain  reasons,  this  was 
held  a  denial  of  liability  and  a  waiver  of  the  proofs 
of  loss69;  and  a  denial  of  liability  on  account  of 
the  presence  of  benzine  on  the  premises  has  the 
same  effect70.  So,  a  denial  of  liability  on  the 

66.  Rokes  v.  Amazon  Co.,  51  Md.  512;  34  A.  R.  323. 

67.  German-Am.   Co.  v.  Norris,   100  Ky.   29;   37   S.  W.   267;   66  A.  S. 

R.    324. 
Wilson   v.   Com.    Union   Co.,    51    S.    Car.    540;    29    S.   E.    245;    64 

A.   S.  R.  700. 

Commercial  Co.  v.  State,  113  Ind.  331 ;  15  N.  B.  518. 
Savage  v.  Phoenix  Co.,   12  Mont.   458;   31  Pac.   66;    33  A.   S.   R. 

591. 
Phoenix  Co.  v.  Bachelder,  32  Neb.  490 ;  62  N.  W.  911 ;  29  A.  S.  R. 

443. 
Stepp  v.  Nat'l.  Assoc.,  37  S.  Car.  444;  16  S.  E.  134. 

68.  Rochester  Loan  Co.  v.  Liberty  Ins.  Co.,  44  Neb.  537;   62  N.  W. 

877;   48  A.   S.  R.   745. 
Faust  v.  American  Co.,  91  Wis.  158 ;  64  N.  W.  883  ;  51  A;  S.  R. 

876;    30   L.    R.    A.    783. 
Roe  v.  Dwelling  H.  Co.,  149  Pa.  St.  94;  23  Atl.  718;  34  A.  S.  R. 

595. 

69.  McBride  v.  Republic  Co.,  30  W<is.  562. 

70.  Faust  v.  American  Co.,  91  Wis.  158 ;  64  N.  W.  883 ;  51  A.  S.  R. 

876;    30   L.    R.    A.    783,    citing   among   others; 
Boyd  v.  Cedar  Rapids  Co.,  70  la.  325  ;  30  N.  W.  585. 
O'Brien  v.  Ohio  Co.,   52  Mich.  131;  17  N.  W.  726. 


326  THE  LAW  OF  WAIVER. 

ground  that  no  contract  ever  existed  between  the 
parties  is  a  waiver  of  proofs  of  loss 71. 

(3)  REFUSAL  TO  PAY  ON  OTHER 
GROUNDS :— Sec.  326.  A  refusal  of  an  insurer 
to  pay  a  loss  under  its  policy  on  other  grounds  than 
the  failure  of  the  insured  to  furnish  the  required 
proofs  of  loss,  is  a  waiver  of  such  proofs72.  And 
the  same  effect  results  from  a  notification  by  the 
insurer  that  it  would  not  pay  the  loss73.  So,  a 
refusal  on  the  part  of -an  insurance  company  to  pay 
a  claim  for  accident  insurance  on  the  ground  that 
death  was  caused  by  poison  and  the  loss  not  covered 
by  the  policy,  is  a  waiver  of  the  requirement  that 
proofs  shall  be  furnished74.  And  an  objection, 
after  a  loss,  that  the  insured  had  no  title  or  interest 
in  the  property  insured,  is  a  waiver  of  the  proofs 
of  loss  stipulated  for75;  or  that  the  property  lost 
was  not  covered  by  the  policy76,  or  that  through 
fraud  the  insured  had  lost  his  right  to  recover77. 


71.  Stokes  v.  Mackay,  147  N.  T.  223  ;   41  N.  E.  496. 
Knickerbocker   Co.   v.   Pendleton,    112   U.   S.    696;    5    Sup.    Ct.   R» 

314;    28   L.   Ed.   866. 

72.  Shepherd's  Adm.  v.  Peabody  Co.,  21  W.  Va.  368. 

Dietz  v.  Providence  Co..  33  W.  Va.  526 ;  11  S.  E.  50 ;  25  A.  S.  R. 

908. 

Martin  v.  Fishing  Co..  20  Pick.  389;  32  A.  D.  220. 
•          Ocean  Co.  v.  Francis,  2  Wend.  64 ;  19  A.  D.  549. 
Carson  v.  German  Co.,  62  la.  433  ;   17  N.  W.  650. 
Marston  v.  Mass.  Co.,  59  N.  H.  92. 
Tayloe  v.  Merchants  Co.,   9  How.  390. 
Thwing  v.  Great  West.  Co.,  Ill  Mass.  93. 
West.  Rock.  Co.  v.  Sheets,  26  Gratt.  854. 
Aetna  Co.  v.  Shryer,  85  Ind.  362. 
Merchants  Co.  v.  Vining,   68  Ga.  197. 

73.  Phoenix  Co.  v.   Spiers,   87  Ky.   285;   8   S.  W.  453. 
Sun  Co.  v.  Mattingly,  77  Tex.  162;  13  S.  W.  1016. 

74.  Met.    Assoc.    v.    Froiland,    161    111.    30;    43    N.    E.     766;     52    A.    S.    R. 

359. 

75.  Grange  Mills  Co.  v.  Western  Co.,  118  111.  396 ;  9  N.  E.  274. 
German  Co.  v.  Gueck,  130  111.  345  ;  23  N.  E.  112  ;  6  L.  R.  A.  835. 

76.  Franklin  Co.  v.  Coates,  14  Md.  285. 

77.  Peorla  Co.  v.  Whitehall,  25  111.   466. 


INSUKANCE.  327 

(4)  BY  OTHER  ACTS  OE  CONDUCT :- 
Sec.  327.  It  has  been  stated  that  any  conduct  on 
the  part  of  the  insurer  or  its  agent  that  induces  the 
insured  to  reasonably  believe  that  proofs  of  loss 
were  not  to  be  demanded,  and  he,  acting  under  such 
belief,  fails  to  furnish  such  proofs  in  the  time  re- 
quired by  the  policy,  renders  them  thereby  waived78. 
Thus,  if  the  insurer  make  a  demand  for  an 
arbitration,  such  demand  is  a  waiver  of  proofs  of 
loss79.  Likewise,  an  agreement  to  settle  on  the 
basis  of  the  figures  of  a  third  party80,  or  partici- 
pation in  an  arbitration81.  So,  if  an  insurer 
investigates  the  cause  of  a  fire  injuring  property 
covered  by  its  policy,  and  thereby  obtains  suffi- 
cient information  to  enable  it  to  determine  the 
amount  of  its  liability  expressly  recognized  by  it, 
and  prepares  proofs  of  loss  from  information  thus 
obtained,  but  the  insured  refuses  to  sign  it  because 
it  contains  a  stipulation  for  a  settlement,  the  fur- 
nishing of  formal  proof  by  the  insured  is  thereby 
waived82,  as  the  conduct  of  the  insurer  was  mis- 
leading to  the  insured83. 

78.  Hartford  Co.  v.  Keating,  86  Md.  130;  38  Atl.  29  ;  63  A.  S.  R.  499. 

79.  Home  Co.  v.  Bean,  42  Neb.  537;   60  N.  W.  907;   47  A.   S.  R.   711. 
Pretzfelder  v.  Merchants  Co.,   123  N.   Car.   164;   31  S.  E.   470;   44 

L.   R.   A.   424. 

80.  Wholley  v.  Western  Co.,  174  Mass.  263;   54  N.  E.  548;   75  A.  S. 

R.   314. 

Graves  v.  Merchants  Co.,  82  la.  637  ;  49  N.  W.  65  ;  31  A.  S.  R.  507. 
Davidson  v.  Guardian  Co.,  176  Pa.  St.  525  ;  35  Atl.  220. 
Perry  v.  Dwelling  H.  Co.,  67  N.  H.  291;  33  Atl.  731;  68  A.  S.  R. 

668. 

McCollum  v.  Liverpool  Co.,   67  Mo.  App.   66. 
Perry  v.  Faneuil  Hall  Co.,   11  Fed.  482. 
McPike  v.  Western  Co.,    61  Miss.   37. 

81.  Carroll  v.  Girard  Co.,  72  Cal.  297  ;   13  Pac.   863. 

82.  Larkin    v.     Glens    Fall    Co.,     80    Minn.     527;     83    N.     W.     409;     81     A. 

S.   R.    286. 

83.  13  Am.  &  Eng.  Enc.  L.,  345,   et  seq. 
Home  Co.  v.  Baltimore  Co.,  93  U.  S.  527. 

Helvetia  Co.  v.  Allis  Co.,  11  Colo.  App.  264;  53  Pac.  242. 
Aetna  Co.  v.  Simmons,   49   Neb.   811;   69  N.   W.   125. 


328  THE  LAW  OF  WAIVER. 

Sec.  328.  But  where  notice  of  a  loss  is  received 
by  the  company,  failure  to  demand  further  proof  is 
not  waived84,  as  mere  silence  of  the  insurer  can- 
not amount  to  a  waiver  of  proof85,  it  not  being 
its  duty  to  notify  the  insured  to  comply  with  his 
contract86. 

B.    DEFECTIVE  PEOOFS  WITHIN  TIME  EE- 
QUIEED- 

(1)  NO  OBJECTION  BY  INSUEEE :— Sec. 
329.  As  has  been  heretofore  noted,  the  condition 
in  a  policy  of  insurance  requiring  proofs  of  loss  to 
be  furnished  by  the  insured  as  a  condition  prece- 
dent to"  his  right  to  recover  must  be  complied  with 
by  him.  And  the  compliance  must  be  within  the  re- 
quired time  and  in  the  designated  manner.  But  a 
distinction  exists  between  the  failure  to  furnish  the 
required  proof  within  the  time  limited  and  the  filing 
of  proofs  which  are  in  some  way  defective  or  in- 
sufficient. In  the  former  case,  no  duty  is  upon  the 
insurer  to  take  any  steps  whatever  for  the  failure 
of  timely  proof  is  a  release,  as  it  were,  ipso  facto 
from  liability  without  any  action  by  the  company; 
but  in  the  latter,  it  is  the  duty  of  the  insurer,  if  it 
receive,  within  the  time  limited,  defective  or  in- 
sufficient proofs  of  loss,  to  return  them  to  the  in- 
sured within  a  reasonable  time,  designating  the  par- 
ticulars in  which  they  are  objectionable,  and  failure 
of  the  insurer  to  do  this  amounts  to  a  waiver  by  it 
of  the  deficiency  of  the  proofs  and  no  defense  can 
later  be  predicated  thereon. 

84.  O'Rellley  v.  Guardian  Co.,  60  N.  Y.  169;  19  A.  R.  161. 
Desilver  v.  State  Mut.  Co.,  38  Pa.  St.  130. 

85.  Mueller  v.  South  Side  Co.,  87  Pa.  St.  399. 

86.  Ayers  v.  Hartford  Co.,  17  la.  176. 
Andraveno  v.  Mut.   Co.,   38  Fed.   806. 


INSURANCE.  329 

Sec.  330.  Or,  as  it  has  been  differently  stated, 
if  the  insured  in  good  faith  and  within  the  stipula- 
ted time,  does  what  he  plainly  intends  as  a  compli- 
ance with  the  requirements  of  the  policy,  good  faith 
equally  requires  that  the  company  notify  him 
promptly  of  its  objections  so  as  to  give  him  the  op- 
portunity to  obviate  them ;  and  mere  silence  may  so 
mislead  him  to  his  disadvantage,  to  suppose  the 
company  satisfied,  as  to  be  of  itself  sufficient  evi- 
dence of  a  waiver  by  estoppel87.  And  even  if  the 
company  return  the  proofs  after  receiving  them, 
its  duty  does  not  end  there;  it  must  state  its  ob- 
jections or  the  defects  will  be  held  waived88.  So,  a 
return  of  the  proofs  with  a  statement  that  they  do 
not  correspond  with  printed  instructions,  is  not  a 
performance  of  the  duty  resting  upon  the  insurer, 
and  defects  in  the  proofs  cannot  later  be  set  up  by 
it  as  a  defense  to  an  action  upon  the  policy89.  And 
retaining  the  books  of  the  insured,  furnished  at  the 
request  of  the  insurer,  till  after  expiration  of  the 
time  limited,  is  a  waiver  of  the  defects  in  the 
proofs90. 

Sec.  331.  An  apparent  departure  from  the  gen- 
eral rule  is  noted  in  an  Iowa  case91,  where  it  is  said 
that  mere  silence  of  the  insurer  will  not  amount  to 
a  waiver  of  defects  in  the  proofs  of  loss.  But  in 

87.  Moyer  v.  Sun  Ins.  Co.,  176  Pa.  St  579;  35  Atl.  221;  63  A.  S.  R. 

690. 

Gould  v.  Dwelling  H.  Co.,  134  Pa.  St.  B88 ;  19  Atl.  793  ;  19  A.  S. 
R.  717. 

88.  Vangindertaelen  v.  Phoenix  Co.,  82  Wis.  112;  51  N.  W.  1122;  33 

A.  S.  R.  29. 

Welsh  v.  London  Corp.,   151  Pa.  St  607;   25  Atl.  142;   31  A.  S. 
R.   786. 

89.  Universal  Co.  v.  Block,  109  Pa.  St.  535. 

90.  Bonnert   v.    Perm.    Co.,    129    Pa.    St.    558;    18    Atl.    652;    15    A.    S.    R. 

739. 

91.  Ayres  v.  Hartford  Co.,  17  la.  176 ;  85  A.  D.  553. 

Affirmed  on  second  appeal,  21  la.  193. 


330  THE  LAW  or  WAIVES. 

the  next  clause  of  the  opinion  the  court  approves 
the  general  rule  by  saying  that  an  objection  to  the 
proofs  upon  one  specific  ground  and  silence  as  to 
another  in  which  was  the  real  defect,  operate  as  a 
waiver  of  the  latter.  And  it  will  be  found  that  al- 
most an  unbroken  line  of  authorities  support  the 
doctrine  that  defects  in  proofs  filed  within  the  re- 
quired time  are  waived  unless  they  be  promptly 
pointed  out  to  the  insured  so  that  he  may  have  an 
opportunity  to  correct  them92. 

(2)  OBJECTION  ON  OTHEE  GBOUNDS:- 
Sec.  332.  The  rule  applicable  to  cases  where  the  in- 
surer fails  to  object  to  the  proofs  or  point  out  their 
defects  obtains  likewise  where  objections  are  made 
but  put  upon  grounds  other  than  the  particular  de- 
fect in  the  proofs.  Or,  as  it  has  been  said,  where 
proofs  of  loss  are  served  and  retained  by  the  in- 
surance company  without  objection  to  the  defects, 
and  the  company  refuses  to  pay  the  loss,  placing 

92.     Cayon  v.  Dwelling  H.  Co.,  68  Wis.  510;  32  N.  W.  540. 

Farnum  v.  Phoenix  Co.,  83  Cal.  246;  2  Pac.  869;  17  A.  S.  K.  233. 

Jones  v.  Mech.  Co..  36  N.  J.  Eq.  29  ;  13  A.  R.   405. 

Insurance  Co.  v.  McDowell,  50  111.  120 ;  99  A.  D.  497. 

Weed  v.  Hamburg  Co.,  133  N.  Y.  394;  31  N.  E.  231. 

Davis  Shoe  Co.  v.  Kittanning  Co.,  138  Pa.  St.  73;  20  Atl.  838;  21 

A.   S.  R.  904. 
German  Co.  v.  Gray,  43  Kans.  497;  23  Pac.  637;  19  A.  S.  R.  150; 

8  L.  R.  A.  70. 

Blake  v.  Exchange  Co.,  12  Gray  265    (Mass.). 
Travis  v.  Continental  Co.,   32  Mo.  App.  198. 
Fire  Ins.  Co.  v.  Felrath,  77  Ala.   194. 
Breckenridge  v.  American  Co.,  87  Mo.  62. 
Works  v.  Farmers  Co.,   57  Me.  281. 
Myers  v.  Council  Bluffs  Co.,  72  la.  176  ;  33  N.  W.  453. 
Swan  v.  Liverpool  Co.,   52  Miss.  704. 
Butterworth   v.   Western   Co.,    132    Mass.    492. 
Little  v.  Phoenix  Co.,  123  Mass.  380;  25  A.  R.  96. 
Sun  Co.  v.  Dudley,   65  Ark.  240;   45   S.  W.  539. 
Alston  v.  Phoenix  Co.,   100  Ga.  287;   27  S.  E.  981.       •   . 
Angier  v.  Western  Co.,   10  S.  Dak.   82  ;   71  N.  W.   761 ;   66  A.   S. 

R.   685. 

1st  Nat'l.  Bank  v.  American  Co.,   58  Minn.   492;   60  N.  W.  345. 
Western  Co.  v.  Richardson,  40  Neb.  1 ;  58  N.  W.  597. 


INSURANCE.  331 

its  refusal  on  some  ground  other  than  defects  in  the 
proofs,  any  further  performance  in  relation  to  the 
proofs  is  waived  and  the  company  is  estopped  when 
sued  on  its  policy  for  the  loss  to  make  any  formal 
objections  to  the  proofs93.  This  doctrine  is  uni- 
versally adhered  to  and  is  founded  on  the  proposi- 
tion that  both  parties  must  conduct  themselves  fair- 
ly and  in  good  faith,  and,  therefore,  that  fair  deal- 
ing entitles  the  insured  to  be  apprised  of  the  de- 
fects or  insufficiency  in  the  proofs  in  order  that  he 
may  remedy  the  matter  before  it  is  too  late94.  The 
principle  is  well  stated  in  the  statute  of  South  Da- 
kota: "All  defects  in  preliminary  proof  which  the 
insured  might  remedy,  and  which  the  insurer  omits 
to  specify  to  him  without  unnecessary  delay,  as 
grounds  of  objection,  are  waived"95. 

C.  NOT  FILED  IN  TIME:— Sec.  333.  The 
provision  in  an  insurance  policy  that  proofs  of  loss 
shall  be  submitted  to  the  insurer  within  a  specified 
time  is  binding  upon  the  insured,  and  his  failure  to 
comply  therewith  is  a  bar  to  his  recovery  on  the 

93.  Continental  Co.   v.  Ruckman,   127  111.  364;   20  N.  E.   77;   11  A.  S. 

R.    121. 

Phoenix  Co.  v.  Tucker,   92   111.   64;   34  A.  R.   106. 
Scammon  v.  Conn.  Ins.  Co.,   20  111.  App.  500. 

94.  Central  Co.  v.  Gates,  86  Ala.  558;  6  So.  S3;   11  A.  S.  R.  67. 
Fireman's  Co.  v.  Floss,   67  Md.  403  ;   10  Atl.   139  ;   1  A.  S.  R.  398. 
May,  Insurance,   469B    (4th  Ed.). 

Tayloe  v.  Mer.   Co..   9  How.  390. 

Hartford  Co.  v.  Harmer,   2   Oh.   St.   452. 

Ayres  v.  Hartford  Co.,   17  la.   176;    (21  la.   193);   85  A.   D.   553. 

2  Wood,  Insurance,  Sec.  452. 

Martin  v.  Fishing  Co.,  20  Pick.  389;  2  A.  D.  220. 

Ocean   Co.   v.   Francis,    2   Wend.    64 ;    19    A.   D.    549. 

McBryde  v.  S.  Car.  Co.,  55  S.  Car.  589  ;  33  S.  E.  729  ;  74  A.  S.  R. 

769. 
Nurney  v.  Fireman's  Co.,  63  Mich.  633  ;  30  N.  W.  350 ;  6  A.  S.  R. 

338. 

Phoenix  Co.  v.  Badger,  53  Wis.  284  ;  10  N.  W.  504. 
Western  Co.  v.  Putnam,  20  Neb.  331 ;  30  N.  W.  246. 

95.  See:  Enos  v.  St.  Paul  Co..  4  S.  Dak.  639;  57  N.  W.  919;  46  A.  S. 

R.   796. 


332  THE  LAW  OF  WAIVER. 

policy.  And  it  is  his  duty  to  make  such  proofs  with- 
out  any  request  or  demand  therefor  from  the  insurer, 
for  the  policy  which  he  accepts  is  notice  to  him  of 
its  requirements.  And,  unlike  receiving  and  re- 
taining defective  proofs  without  specifying  objec- 
tions thereto,  the  mere  receipt  after  the  time  limited 
of  proofs  of  loss  and  their  retention  in  silence  is  not 
and  should  not  be  a  waiver  by  the  insurer  of  the 
failure  to  file  the  proofs  in  time96.  But  caution 
should  be  used  in  applying  this  doctrine  in  order  to 
bring  about  an  exercise  of  good  faith  and  fair  deal- 
ing on  the  part  of  the  insurer.  And  it  must  be  re- 
membered that  a  distinction  exists  between  those 
cases  where  the  insurer  receives  belated  reports 
and  says  or  does  nothing,  and  those  other  cases 
where  the  insurer  by  its  conduct  induces  delay  or 
renders  the  production  of  proofs  useless  or  unavail- 
ing or  induces  in  the  mind  of  the  insured  an  honest 
belief  that  no  proofs  will  be  required.  In  the  former 
cases  the  insured  must  suffer  for  his  own  laches; 
but  in  the  latter,  his  default  is  deemed  waived  on  ac- 
count of  the  conduct  of  the  insurer  in  lulling  him 
into  a  false  feeling  of  security97. 

Sec.  334.  Thus,  where  the  company  received 
the  proofs  after  the  time  limited,  referred  them  to 
its  adjuster  and  retained  them  without  objection  or 
complaint  for  five  months,  the  court  said  that  if  the 
company  acted  upon  the  proofs  as  having  been  re- 

96.     Andaveno  v.  Mutual,  38  Fed.   806. 

Daniels  v.  Equitable,   50  Conn.   551. 

Cent.  City  v.  Gates,  86  Ala.  558;  6  So.  83  ;  11  A.  S.  R.  67. 

Ayres  v.  Hartford  Co.,  17  la.  176;  21  la.  193;  85  A.  D.  555. 

Bell  v.  LycomJng  Co.,  19  Hun  238. 

»7.     Kenton  Co.  v.  Wigginton,  89  Ky.  330;   12  S.  W.  668;  7  L.  R.  A. 
80. 

Martinson  v.  N.  B.  Co.,  64  Mich.  372;  31  N.  W.  291. 

German  Co.  v.  Grunert,  112  111.  69. 

Gane  'v.  St.  Paul  Co.,  43  Wis.  109. 


INSURANCE.  333 

ceived  in  time,  and  made  no  objections  whatever 
until  the  trial,  it  would  be  presumed  to  have  waived 
the  objection  that  the  proofs  were  not  filed  in  time98. 
And  by  its  action  in  sending  to  the  insured  a  blank 
form  for  proof  of  loss  after  the  expiration  of  the 
time  designated  for  furnishing  same,  and  receiving 
the  proof  without  objection  when  made,  it  waived  a 
default  in  making  such  proof  within  the  required 
time".  After  a  belated  proof  had  been  received  by 
the  insurer,  it  called  upon  the  insured  for  further  in- 
formation in  the  procurement  of  which  the  insured 
was  put  to  further  expense  and  trouble.  The  in- 
surer, in  an  action  on  the  policy,  set  up  the  defense 
that  the  proofs  were  not  served  in  time.  The  court 
said  that  it  is  well  settled  that  such  defenses  are 
waived  when  the  company,  with  full  knowledge  of 
the  facts,  requires  the  insured,  by  virtue  of  the  con- 
tract, to  do  some  act  or  incur  some  expense  or 
trouble  inconsistent  with  the  claim  that  the  con- 
tract had  become  inoperative100.  So,  requiring  fur- 
ther proofs  is  a  waiver  of  prior  defaults1,  or  de- 
manding the  certificate  of  a  notary  as  to  the  loss2. 
And  a  failure  to  furnish  proof  of  death  within  the 
time  limited  by  a  life  insurance  policy  is  waived  when 
the  company  makes  a  proposal  to  settle,  or  abso- 

98.  Commercial  Co.  v.  Hocking,  115  Pa.  St.  407 ;   8  Atl.  589 ;  2  A.  8. 

R.  562. 
Lyooming  Co.  v.  Schreffer.  42  Pa.  St.  188 ;  82  A.  D.  501. 

99.  Traveler's  Co.  v.  Edwards,  122  U.  S.  457  ;  30  L.  Ed,  1178. 
Burlington  Co.  v.  Lowery,   61  Ark.   108 ;   32  S.  W.  383  ;   54  A.  S. 

R.  196. 

Insurance  Co.  v.  Eggleston.  96  U.  S.  572. 

100.     Trippe  v.  Provident  Soc.,  140  N.  T.  23  ;  35  N.  E.  316;  22  L.  R.  A. 
432. 

1.  Armstrong  v.  Agr.  Co.,   130  N.  T.   560. 
Bliss:     Life  Insurance,   268. 

Coke:  Life  Insurance,  118. 

2.  Merchants  Co.  v.  Gibbs.  56  N.  J.  L.  679;  29  Atl.  485;  44  A.  S.  R. 

413. 
Martin  v.  State  Co.,  44  N.  J.  L.  485;  43  A.  R.  397. 


334  THE  LAW  OF  WAIVER. 

lutely  refuses  to  pay,  or  denies  all  liability,  or  asks 
for  additional  proofs  without  making  objection  that 
proof  was  not  made  in  time3. 

D.  WHO  MAY  WAIVE  PROOFS:— Sec. 
335.  As  will  have  been  noted  in  previous  pages, 
perhaps  no  greater  difficulty  will  be  found  in  the 
law  of  insurance  than  in  an  attempt  to  harmonize 
the  adjudications  on  the  question  as  to  who,  or,  as 
is  more  frequently  to  determine,  what  agents  may 
waive  conditions  in  policies  of  insurance.  But  in 
the  waiver  of  proofs  of  loss,  many  courts  which 
deny  to  an  agent  the  power  to  waive  conditions 
breached  prior  to  a  loss  when  the  policy  prohibits 
such  waiver,  uphold  such  power  in  him  for  the 
waiver  of  proofs  of  loss,  saying  that  the  condition  of 
the  policy  prohibiting  agents  from  exercising  such 
authority  applies  only  to  those  provisions  which 
relate  to  the  formation  and  continuance  of  the  con- 
tract and  are  essential  to  its  binding  force  while  it 
is  running  and  does  not  apply  to  those  conditions 
which  are  to  be  performed  after  a  loss  has  occurred, 
such  as  furnishing  preliminary  proof4.  Other 
courts  state  clearly  and  decisively  the  proposition 
that  one  who  is  appointed  by  an  insurer  to  make 
contracts  of  insurance,  issue  policies  and  collect 
premiums  is  the  general  agent  of  the  insurer  and  as 
such  is  authorized  to  waive  proofs  of  loss  either 

3.  McElroy  v.  Hancock,  88  Md.  137;  41  Atl.  112;  71  A.  S.  R.  400. 
Hartford  Co.  v.  Keating,  86  Md.  130;   63  A.  S.  R.  499. 

4.  Wheaton  v.  N.  B.  Co.,  76  Cal.  417;  18  Pac.  758  ;  9  A.  S.  R.  216. 
N.  O.  Assoc.  v.  Matthews,  65  Miss.  301 ;  4  So.   62. 

O'Brien  v.  Ohio  Co.,  52  Mich.   131;   17  N.  W.   726. 
Franklin  v.  Chi.  Ice  Co.,  36  Md.   102;   11  A.  R.   469. 
Blake  v.  Ex.   Co.,   12   Gray  265. 

Carson  v.  Jersey  Co.,  43  N.  J.  L.  300;  39  A.  R.  584. 
Indiana  Co.  v.  Capehart,  108  Ind.  270;  8  N.  B.  285. 
Dibbrell  v.  Georgia  Co.,  110  N.  Car.  193;  14  S.  E.  783;  28  A.  S. 
R.   678. 


INSUEAXCE.  33.5 

expressly  or  by  Ms  conduct5;  others  saying  that  a 
waiver  may  be  made  by  an  authorized  agent6,  the 
determination  of  whether  an  agent  is  authorized  or 
not  being  the  difficult  point. 

Sec.  336.  It  occurs  to  the  writer  that  no  ques- 
tion should  be  raised  as  to  the  power  of  an  adjuster 
to  waive  proofs  of  loss  and  that  any  act  or  expres- 
sion of  his  calculated  to  induce,  or  having  the  ef- 
fect of  inducing  a  belief  in  the  mind  of  the  assured 
that  such  proof  would  not  be  insisted  upon  or,  if  de- 
fective, that  no  objection  would  be  made  should  be 
held  a  waiver ;  and  it  is  thought  that  the  cases  quite 
generally  declare  this  doctrine7.  It  must  be  shown, 
of  course,  that  the  adjuster  had  authority  to  repre- 
sent the  company  in  adjusting  the  loss8,  or  in  set- 
tling it9.  But  some  cases  go  farther  than  this  and 
say  that  an  agent  having  authority  to  solicit  insur- 
ance, countersign  policies,  collect  premiums  and  de- 
liver the  policies  is  presumed  to  have  power  to 
waive  proofs  of  loss10;  and,  again,  this  doctrine  is 
denied,  and  a  diametrically  opposite  position 

5.  Phoenix  Co.  v.  Bowdre,  67  Miss.  620;  7  So.  596;  19  A.  S.  R.  326. 
Rivara  v.  Queen's  Ins.   Co.,   62  Miss.   728. 

6.  Perry  v.  Mech.   Co.,   11   Fed.   478. 

7.  Aetna  Co.   v.   Shryer,   85    Ind.    362. 

Indiana  Co.   v.   Copehart,   108   Ind.   270 ;   8   N.  E.   285. 
Western  Co.  v.  McCarty,   18  Ind.  App.  449. 
David  v.  Oakland  Co.,  11  Wash.  181 ;  39  Pac.  443. 
Dwelling  H.   Co.  v.  Osborn,    1  Kans.  App.   197  ;   40   Pac.   1099. 
Dick  v.  Equitable  Co.,  92  Wis.  46;   65  N.  W.  742. 
Wrig-ht  v.  Fire  Assoc.,  12  Mont.  474;  31  Pac.  87;  19  L.  R.  A.  211. 
Dibbrell  v.  Georgia  Co.,   110  N.  Car.  193  ;  28  A.  S.  R.  678. 
Hahan  v.  Guardian  Co.,  23  Oreg.  576;  32  Pac.  683;  37  A.  S.  R. 
709. 

8.  Germania  Co.,  v.  Davis,  40  Neb.  700  ;  59  N.  W.  698. 
Kirkman  v.  Farmers  Co.,  90  la.   457  ;   57  N.  W.  952  ;   48  A.  S.  R. 

454. 

9.  Kahn  v.  Trader's  Co.,  4  Wyo.  419  ;  34  Pac.  1059  ;   62  A.  S.  R.  47. 
10.     Mickell  v.  Phoenix  Co.,  144  Mo.  420  ;  46  S.  W.  435. 

Snyder  v.  Dwelling  H.  Co.,  59  N.  J.  L.  544  ;  37  Atl.  1022  ;  59  A.  S. 

R.   625. 
Hartford  Co.  v.  Keating,  86  Md.  130;  38  Atl.  29;  63  A.  S.  R.  499. 


336  THE  LAW  OF  WAIVER. 

taken  ".  We  think  that  the  correct  basis  for  deter- 
mination of  the  matter  is  this:  If  the  agent  be 
clothed  with  authority,  or  apparent  authority  to  ad- 
just or  settle  losses,  or  if  he  has  been  accustomed, 
with  the  acquiescence  of  the  company,  to  receive 
proofs  of  loss  and  determine  in  any  manner  their 
sufficiency,  then  he  should  be  held  to  have  author- 
ity to  waive  proofs  of  loss  or  defects  therein12. 

E.    WHETHER   PEOOFS   MAY  BE   WAIVED 
ORALLY— 

(1)  IN  THE  NEGATIVE:— Sec.  337.  One 
provision  found  in  nearly  all  policies  is  that  no 
agent  shall  have  authority  to  change  or  waive  any 
of  its  conditions  or  provisions  except  by  writing  in- 
dorsed on  the  policy.  This  applies  equally  to  pro- 
visions requiring  proofs  of  loss  as  to  other  condi- 
tions. And  it  has  been  said  that  in  prescribing  such 
a  term  or  condition,  the  insurer  has  prescribed  only 
a  reasonable  rule  to  guard  against  the  uncertainties 
of  parol  evidence13,  and  the  possibility  of  fraud  and 
collusion14;  and  that  the  provision  becomes  binding 
as  a  part  of  the  contract,  and  acceptance  of  the  pol- 
icy is  notice  to  the  insured  of  this  condition  in  the 
performance  of  which  he  defaults  at  his  peril15. 

(2)      IN    THE    AFFIRMATIVE:— Sec.  338. 
But  the  current  of  authority  undoubtedly  flows  in 

11.  Kirkman  v.  Farmers  Co.,  supra. 
Lohnes  v.  Ins.   Co.,    121   Mass.   439. 
Harrison  v.  Hartford  Co..  59  Fed.  732. 

Smith  v.  Niagara  Co..  60  Vt.  682 :  15  Atl.  353  ;  6  A.  S.  R.  144. 

12.  Graves  v.  Merchants  Co.,  82  la.  637;   49  N.  W.   65 ;  31  A.  S.  R. 

507. 
Harnden  v.  Milwaukee  Co.,  164  Mass.  382 ;   41  N.  E.  658. 

13.  Kyte  v.  Commercial  Co..  144  Mass.  43 ;  10  N.  E.  318. 

14.  Walsh  v.  Hartford  Co.,  73  N.  T.  5. 

15.  Wheaton  v.  N.  B.  Co..  76  Cal.  415 ;  18  Pac.  758 ;  9  A.  S.  R.  216. 
See:  Insurance  Co.  v.  Wilkinson,  13  Wall.  222. 


INSURANCE.  337 

the  opposite  direction.  The  better  rule  is  that  al- 
though the  policy  specially  provides  that  the  pre- 
liminary proof  of  loss  shall  be  made  in  a  particular 
mode  and  within  a  limited  time,  yet  the  company 
may,  even  through  its  agent,  waive  the  benefit  of  the 
provision,  and  a  waiver  may  be  implied  from  the 
manner  in  which  the  company  or  its  agent  has  dealt 
with  the  policy-holder  subsequent  to  the  loss16.  And 
there  is  no  good  reason  why  the  condition  requiring 
proofs  of  loss  may  not  be  waived  by  parol  in  the 
face  of  the  provision  that  it  shall  not  be  effective  un- 
less written  on  the  policy.  Insurers  are  subject  to 
the  same  laws  controlling  other  contracting  parties, 
and  any  written  contract,  not  required  by  the  stat- 
ute of  frauds  to  be  in  writing,  may  be  modified  by  a 
subsequent  oral  agreement  between  the  parties  there- 
to, or  its  conditions  may  be  abrogated  by  a  course  of 
conduct  inconsistent  with  its  terms.  And  here, 
again,  it  is  said  that  this  stipulation  against  waiver 
of  conditions  except  by  writing  on  the  policy  applies 
only  to  those  conditions  which  relate  to  the  forma- 
tion and  continuance  of  the  contract  and  are  es- 
sential to  its  binding  force,  while  it  is  running,  and 
does  not  apply  to  conditions  which  are  to  be  per- 
formed after  a  loss  has  occurred;  and  it  is,  there- 
fore, held  that  preliminary  proofs  may  be  waived  by 
parol  contrary  to  the  terms  of  the  policy17. 

6.  AEBITEATION:— Sec.  339.  The  usual 
provision  as  to  arbitration  in  policies  of  insurance 
is  that  in  case  of  difference  between  the  insurer  and 

16.  Wood:  Fire  Insurance,  447. 

17.  Phoenix  Co.  t>.  Bowdre,  67  Miss.  620;  7  So.  696;  19  A.  S.  R.  326. 
Insurance  Co.  v.  Eggleston,  96  U.  S.  672. 

Burlington  Co.  v.  Kennerly,  60  Ark.  532 ;   31  S.  W.  155. 
Carson  v.  Jersey  City  Co.,  43  N.  J.  L.  800 ;  39  A.  R.  584. 
Traveler's  Co.  v.  Hamey,  82  Va.  949. 
German  Co.  v.  Gray,  43  Kans.  497;  23  Pac.  637;  19  A.  S.  R.  150. 


338  THE  LAW  OF  WAIVER. 

the  insured  as  to  the  amount  of  a  loss,  the  matter 
shall  be  referred  to  a  board  of  appraisers  who  shall 
determine  the  amount,  and  that  such  determination 
shall  be  a  condition  precedent  to  a  right  of  action 
by  the  assured,  some  policies  attempting  to  make 
the  amount  so  determined  conclusive.  This  condi- 
tion is  for  the  benefit  of  the  insurer  and  may  be 
waived  or  insisted  upon  by  it  at  its  option.  A 
waiver  of  the  provision  may  be  express  or  it  may 
be  inferred  from  conduct  inconsistent  with  an  inten- 
tion to  insist  upon  it. 

Sec.  340.  Thus,  where  the  insurer  refuses  to 
pay  any  amount  at  all,  the  clause  is  waived18.  And 
where  the  company  took  possession  of  the  damaged 
property  and  proceeded  to  repair  it,  it  could  not  later 
defend  an  action  on  the  ground  of  no  appraisal19. 
In  one  case,  after  a  fire  and  within  the  time  pre- 
scribed by  the  policy  the  plaintiffs  furnished  the  de- 
fendant the  required  proofs  of  loss,  and  thereupon, 
without  questioning  or  making  objection  to  the 
amount  of  the  loss  claimed  or  to  the  proofs  thereof, 
the  company,  for  other  reasons,  not  only  denied  its 
liability  but  denied  the  existence  of  the  policy,  claim- 
ing that  it  had  been  cancelled  two  months  before  the 
loss.  This  was  held  to  be  sufficient  evidence  that  the 
insurer  acquiesced  in  the  amount  of  the  loss  claimed, 
and  thereby  waived  its  right  to  have  it  determined 
by  arbitration20.  And  even  where  such  arbitration 
is  a  condition  precedent  to  the  right  to  maintain  an 
action  on  the  policy,  the  assured,  after  his  prof- 
is.  Western  Co.  v.  Putnam,  20  Neb.  331;  30  N.  W.  246. 

19.  Cobb  v.  N.  E.  Co.,   6  Gray,   192    (Mass.). 

20.  Farnum  v.   Phoenix  Co.,   83   Cal.   246;   23   Pac.    869;    17  A.   S.   R. 

233. 

Lasher  v.   N.  W.   Co.,   18   Hun   98;    35   How.   Pr.    318. 
Mentz  v.  Armenia  Co.,  79  Pa.  St.  478 ;  21  A.  R.  8C. 
Phoenix  Co.  v.  Badger,  53  Wis.  284;  10  N.  W.  504. 


INSURANCE.  339 

fered  proofs  of  loss  have  been  rejected  by  the  in- 
surer without  demand  for  an  appraisal  or  objection 
to  the  amount  of  the  loss  as  shown  by  such  proofs, 
may  sue  for  the  loss  without  first  showing  an  ap- 
praisal21. And  a  waiver  likewise  occurs  where  the 
assured,  after  a  loss,  demands  an  arbitration  which 
is  refused  by  the  insurer22.  So  it  is  said  that  arbi- 
tration becomes  imperative  only  after  a  written  re- 
quest for  one  has  been  made.  The  request  is  op- 
tional with  either  party,  and  if  neither  of  them  takes 
advantage  of  the  right  to  arbitrate,  it  must  be 
deemed  to  have  been  waived  by  both23.  And  an  ab- 
solute denial  of  liability  is  a  waiver  of  the  arbitra- 
tion clause24,  although  this  has  been  differently  de- 
cided25. 

7.    LIMITATION  OF  TIME  TO  SUE: 

A.  WHAT  CONSTITUTES  A  WAIVER:— 
Sec.  341.  Another  clause  common  to  policies  is  that 
providing  that  all  right  of  action  shall  be  barred  un- 
less exercised  within  a  certain  time  after  a  loss  or 
after  proofs  of  loss  have  been  furnished.  This 
condition  is  valid  and  binds  the  insured  if  insisted 
upon  by  the  insurer  or  unless  something  is  done  by 

21.  Randall  v.  American  Co.,  10  Mont.  340;  25  Pac.  953;  24  A.  S.  R. 

50. 

22.  Continental  Oo.  v.  Wilson,  45  Kans.  250 ;   25  Pac.   629 ;   23  A.  S. 

R.  720. 

Vangindertaelen  v.  Phoenix  Co.,  82  Wis.  112  ;  51  N.  W.  1122  ;  33 
A.  S.  R.  29. 

23.  Nurney  v.  Fireman's  Co.,  63  Mich.  633  ;  30  N.  W.  350 ;  6  A.  S.  R. 

338. 
Gere  v.  Council  Bluffs  Co.,  67  la.  272 ;  23  N.  W.  137 ;  25  N.  W. 

159. 
Wright  v.  Susquehanna  Co..  110  Pa.  St.  29;  20  Atl.  716. 

24.  Wainer  v.  Nulford  Co.,  153  Mass.  235;  26  N.  E.  877;  11  L.  R.  A. 

598. 
Hutchinson  v.  Liverpool  Co.,  153  Mass.  143 ;  26  N.  E.  439 ;  10 

L.  R.  A.   558. 
German  Co.  v.  Etherton,  25  Neb.  505 ;  41  N.  W.  406. 

25.  Pioneer  Co.  v.  Phoenix  Co.,  106  N.  Car.  28;   10  S.  E.  1059. 


340  THE  LAW  OF  WAIVER. 

it  manifesting  an  intention  or  inclination  not  to  en- 
force the  provision.  The  condition  is  a  stringent 
one  and  oftentimes  oppressive  npon  the  insured, 
and  the  inclination  of  the  courts  is  to  hold  slight 
evidence  sufficient  to  show  that  the  insurer  has 
elected  to  forego  its  rights  thereunder.  And  if  the 
course  of  conduct  pursued  by  the  insurer  is  such  as 
to  induce  the  insured  to  believe  that  the  loss  will  be 
paid  or  adjusted  without  suit,  and  for  this  reason 
suit  is  not  brought  within  the  time  prescribed  in  the 
policy,  then  suit  may  be  brought  after  such  time, 
for  the  conduct  of  the  insurer  constitutes  a  waiver 
of  the  limitation26.  So,  part  payment  of  the  loss 
produces  the  same  result27,  as  does  fraud  of  the 
insurer  in  holding  out  reasonable  hopes  of  a  settle- 
ment28, or  misconduct  of  its  agent  misleading  to  the 
assured29.  And  if  the  acts  of  the  insurer  are  such 
as  to  induce  a  reasonably  prudent  man  to  believe  it 
unnecessary  to  bring  suit,  the  limitation  is  waived30, 
as  it  is  if  the  insurer  promises  to  pay  after  the  suit 
is  brought31,  or  flatly  refuses  to  pay  at  all32,  or  rec- 

26.  St.  Paul  Co.  v.  McGregor,  63  Tex.  404. 
Smith  v.  Glens  Falls  Co.,  62  N.  Y.  88. 
Farmers  Co.  v.  Chestnut,  50  111.  115;  99  A.  D.  492. 
Peorla  Co.  v.  Hall,  12  Mich.  202. 

Grant  v.  Lexington  Co.,  5  Ind.  23 ;  61  A.  D.  74. 
Killlps  v.  Putnam  Co.,  28  Wis.  472  ;  9  A.  R.  506. 
McFarland  v.  Peabody  Co.,  6  W.  Va.  425. 

27.  Kentucky  Mut.  Co.  v.  Turner  (Ky.)  ;  13  S.  W.  104. 

28.  Mickey  v.  Burlington  Co.,  35  la.  174  ;  14  A.  R.  494. 
Coorheis  v.  People's  Soc.,  91  Mich.  469 ;  51  N.  W.  110». 
Little  v.  Phoenix  Co.,  123  Mass.  389;   25  A.  R.   96. 
Martin  v.  Slate  Co.,  44  N.  J.  485 ;  43  A.  R.  397. 

29.  Jennings  v.  Met.  Co.,  148  Mass.  61;  18  N.  E.  601. 
80.     Blsh  v.  Hawkeye  Co.,  69  la.  184;  28  N.  W.  552. 

Black  v.  Winnesheik  Co.,  31  Wis.  74. 

Derrick  v.  Lamar  Co.,  74  111.  404. 
31.  Home  Co.  v.  Meyer,  93  111.  272. 

Ames  v.  N.  Y.  Co.,  14  N.  Y.  253. 
82.  Georgia  Home  Co.  v.  Jacobs,  56  Tex.  366. 

State  Co.  v.  Maackrns,  38  N.  J.  L.  564. 

Commercial  Co.  v.  Allen,  80  Ala.  571. 

Aetna  Co.  v.  Maguire,  51  111.  342. 


INSURANCE.  341 

ognizes  any  liability33.  The  limitation  is  waived 
where  the  insurer,  within  the  time  limited,  made  an 
assignment  for  the  benefit  of  creditors34,  or  sent  a 
letter  to  the  insured  requesting  him  to  let  the  mat- 
ter rest  till  the  adjuster  could  see  the  attorney  of 
the  insured35;  or  refused  to  permit  a  beneficiary  in 
an  accident  policy  to  inspect  its  by-laws  and  mis- 
stated the  time  within  which  action  should  be 
brought36,  or  retained  the  books  and  papers  of  the 
assured  till  after  the  expiration  of  the  prescribed 
time37.  And  this  condition  may  be  waived  orally 
as  well  as  in  writing,  notwithstanding  a  provision 
to  the  contrary  in  the  policy38. 

B.  ACTS  NOT  A  WAIVER:— Sec.  342.  But 
the  clause  is  not  waived  by  the  failure  and  neglect  of 
the  insurer  to  adjust  the  loss39,  nor  by  mere  nego- 
tiations40, nor  by  a  promise  to  pay,  which  promise  is 
withdrawn  four  months  prior  to  the  expiration  of 
the  time  limited41,  nor  is  silence  such  a  waiver42,  nor 
indefinite  conversations  about  an  adjustment43,  nor 
where  the  insurer  declines  to  enter  into  any  negotia- 
tions44. 

33.  Horst  V.  Insurance  Co.,  73  Tex.  67  ;  11  S.  W.  148. 

34.  In  re  St.  Paul  Co.,  58  Minn.  163  ;  59  N.  W.  996 ;  49  A.  S.  R.  497. 

35.  Turner  v.  Fidelity  Co.,  112  Mich.  425;  70  N.  W.  898;  67  A.  S.  R. 

428  ;  38  L.  R.  A.  529. 

36.  Met.  Assoc.  v.  Froiland.   161  111.   30;    43   N.  E.   766;   52  A.   S.  R. 

359. 

37.  Bonnert  v.  Penn.  Co..  129  Pa.  St.  558 ;  18  AtL  552 ;  15  A.  S.  R. 

739. 

38.  Dwelling  H.  Co.  v.  Brodie,  52  Ark.  11;  11  S.  W.  1016;  4  L.  R.  A. 

458. 

Gladding  v.  California  Co.,  66  Cal.  6 ;  4  Pac.  764. 
Blake  v.  Exchange  Co.,  12  Gray  271. 

Franklin  Co.  v.  Chi.  Ice  Co.,  36  Md.   102;   11  A.  R.  469. 
Wood,   Fire  Insurance,    (2d  Ed.)    Art    525. 

39.  Button  v.  Vermont  Co.,   17  Vt.   369. 

40.  Allemania  Co.  v.  Little,   20  Bradw.   431. 

41.  Garretson  v.  Hawkeye  Co.,   65  la.  468;   21  N.  W.   781. 

42.  Schroeder  v.  Keystone  Co.,  2  Phila.  286. 

43.  Ripley  v.  Aetna  Ins.  Co.,  30  N.  T.  136;   86  A,  D.  362. 

44.  Id. 


342  THE  LAW  OF  WAIVER. 

CHAPTER  13. 

TOETS. 

Section. 

1.  In    General    343 

2.  Fraud  and  Fraudulent  Representations 345 

3.  Conversion    348 

4.  Effect   of  Waiver    351 

1.  IN  GENERAL:— Sec.  343.  If  a  party 
have  a  right  under  the  law  to  sue  either  in  tort  or 
on  an  implied  contract  under  the  same  line  of  facts, 
he  will  be  held  to  have  waived  one  by  proceeding  on 
the  other.  But  no  waiver  can  take  place  unless  the 
party  have  full  knowledge  of  all  the  facts  and  of  all 
his  rights  thereunder45.  A  party  may  waive  an 
action  of  tort  and  sue  in  assumpsit  for  the  money 
which  he  paid  on  the  contract  or  which  the  defend- 
ant has  received  under  it ;  but  where  part  of  the  con- 
sideration was  land  and  claims  against  other  per- 
sons, a  recovery  for  them  cannot  be  had  under  a 
count  for  money  had  and  received  unless  so  far  as 
the  defendant  may  have  converted  them  into  money. 
If  more  than  mere  rescission  is  sought,  the  plain- 
tiff must  sue  for  damages46.  A  party  cannot  waive 
a  tort  and  bring  an  action  in  assumpsit  against  the 
tort-feasor  except  where  the  property  has  been 
converted  into  money  or  its  equivalent47. 

Sec.  344.  If  one  has  taken  possession  of  prop- 
erty and  sold  or  disposed  of  it  without  lawful  au- 
thority, the  owner  may  either  disaffirm  his  act  and 

45.  Sllvey  v.  Tift,   123  Ga.   804;   61  S.  E.   748;   1  L.  R.  A.    (N.  S.) 

386. 

46.  Pearsoll  v.  Chapin.  44  Pa.  St.  9. 

47.  Emerson  v.  McNamara,  41  Me.  665. 
Androsooggln  Co.   v.   Metcalf,   65   Me.   40. 
Quimby  v.  Lowell,  89  Me.  547;   36  Atl.  902. 


TOETS.  343 

treat  him  as  a  wrong-doer  and  sue  him  for  a  tres- 
pass or  for  a  conversion  of  the  property,  or  he 
may  affirm  his  acts  and  treat  him  as  his  agent  and 
claim  the  benefit  of  the  transaction;  and  if  he  has 
once  affirmed  his  acts  and  treated  him  as  his  agent, 
he  cannot  afterward  treat  him  as  a  wrong-doer,  nor 
can  he  affirm  his  acts  in  part  and  void  them  as  to  the 
rest48.  So,  if  property  has  been  disposed  of  by  him 
who  tortiously  obtains  possession  of  it,  the  tort  may 
be  waived  and  assumpsit  maintained49,  even  though 
there  is  no  positive  proof  as  to  the  amount  received 
for  the  property50.  And  if  a  passenger  is  injured 
through  the  negligence  of  a  carrier,  while  traveling 
under  a  contract,  he  may  waive  the  contract  and 
sue  in  tort,  or  vice-versa?'1. 

2.  FRAUD  AND  FRAUDULENT  REPRE- 
SENTATIONS:— Sec.  345.  Courts  look  with  dis- 
favor upon  alleged  waivers  of  fraud  or  fraudulent 
representations  inducing  contracts.  While  it  is  true 
that  such  fraud  may  be  ignored  by  the  party  enti- 
tled to  complain  of  it,  yet  in  order  to  show  a  com- 
plete waiver,  it  must  clearly  appear  that  at  the  time 
of  such  alleged  waiver  there  was  full  knowledge 
of  all  the  facts,  and  the  acts  or  language  of  the  party 
against  whom  the  waiver  is  alleged  must  be  abso- 
lutely inconsistent  with  any  intention  to  take  ad- 
vantage of  his  rights  after  such  knowledge52.  The 
confirmation  of  the  act  tainted  with  fraud  must  be 
deliberate  and  unequivocal. 


48.  Addison  on  Torts,  33. 

49.  Miller  v.  King,   67  Ala.   576. 
Doon  v.  Ravey,  49  Vt.   293. 

50.  Smith,  et  al.  v.  Jernigan,  83  Ala.   256;   3   So.   515. 

51.  L.   S.  &  M.   S.  Ry.  Co.  v.  Teeters.   166   Ind.    335;    77   N.  E.   599; 

6  L.  R.  A.    (N.  S.)   425. 

52.  Cumberland  Coal  Co.  v.  Sherman,   20  Md.  117. 


344  THE  LAW  OP  WAIVER. 

The  decisions  are  somewhat  inharmonious  as  to 
what  facts  and  circumstances  will  be  sufficient  to 
amount  to  a  waiver  of  fraud  in  the  inducement  of  a 
contract.  Where  a  defrauded  vendee  of  property 
retains  it  after  discovery  of  fraudulent  representa- 
tions regarding  it,  he  is  said  neither  to  have  waived 
the  fraud  nor  a  right  to  sue  for  damages53.  And 
merely  offering  the  property  for  sale  after  ascer- 
taining the  true  facts  is  not  a  waiver54 ;  nor  recover- 
ing an  uncollectable  judgment  for  the  purchase- 
price55;  although  selling  it  amounts  to  a  waiver  of 
the  right  to  rescind  and  to  sue  for  damages58.  And 
one  knowing  of  fraud  who  subsequently  confirms 
the  original  contract  by  making  new  agreements 
regarding  it  or  doing  any  other  act  manifesting  an 
intention  to  treat  it  as  a  valid  and  subsisting  agree- 
ment, waives  the  fraud  and  forfeits  any  equitable 
relief  he  might  have  had  thereon57.  But  it  is  not  a 
waiver  to  accept  part  payment  of  a  purchase-price 
note,  the  vendor  stating  at  the  time  that  he  did  not 
waive  his  claim  for  damages  on  account  of  the  de- 

53.  Murray  v.  Jennings,   42  Conn.   9. 

Sells  v.  Miss.  River  L.   Co.,  88  Wis.   581;   60  N.  W.  1065. 
Matlock.  v.  Reppy,  47  Ark.   148;   14  S.  W.  546. 

54.  Pierce  v.   Wilson,   34  Ala.    596. 

Cottrill  v.  Krum,  100  Mo.  397;  13  S.  W.  753. 

55.  Standard  S.  M.   Co.  v.  Owings,   140  N.  Car.  503;   53  S.  E.   345;   8 

L.  R.  A.   (N.  S.)   582. 

56.  Baker  v.  Maxwell,   99  Ala.   558;   14   So.   468. 

57.  Thompson  v.  L,ibby,   36  Minn.   287;   31  N.  W.   52. 
John  v.  Hendrickson,  81  Ind.   350. 

Werner  v.  Pen  Argyl  Co.,  133  Pa.  St.  457 ;  19  Atl.  417. 

Rogers  v.   Hlggins,   57   111.   244. 

Gilchrlst  v.  Manning,   54  Mich.  210;   19  N.  W.   959. 

Masson  v.  Bovet,   1  Denlo  69. 

Grymes  v.  Sanders,   93  U.   S.  55. 

Vernol  v.  Vernol,   63   N.  T.   45. 

Bower  v.  Metz,  54  la.  394;   6  N.  W.  551. 

Seavy  v.  Potter,   121   Mass.   297. 

Hunt  v.  Hardwick,   68  Ga.   100. 

Brown  v.  Waters,   7   Neb.   424. 

Barman  v.  Woods,  38  Ark.  351. 


TORTS.  345 

ceit58;  and  false  representations  that  a  mortgage 
is  a  prior  lien  are  not  waived  by  retaining  the  mort- 
gage59. 

Sec.  346.  The  principles  here  set  out  have  been 
well  commented  on  by  a  Federal  court  as  follows : 
"The  contract,  being  against  conscience  because  of 
the  fraud,  is  not  obligatory  upon  him  if  he  shall  so 
elect;  but  if,  when  fully  informed  of  the  fraud,  he 
voluntarily  confirms,  ratifies  and  performs  and  ex- 
acts performance  of  the  contract,  he  condones  the 
fraud,  and  such  ratification,  like  the  unauthorized 
act  of  an  agent,  relates  to  the  time  of  the  contract, 
confirming  it  from  its  date  and  purging  it  of  fraud. 
With  respect  to  an  executory  contract,  one  may  not, 
with  knowledge  of  the  fraud,  continue  to  carry  it 
out,  exacting  performance  from  the  other  party  to 
it,  receive  its  benefits,  and  still  pursue  an  action  for 
deceit;  and  this  because  continued  execution  with 
knowledge  of  the  fraud  signifies  the  ratification  of  a 
contract  voidable  for  fraud,  and  condones  the  fraud. 
For  example,  if  one  by  the  imposition  of  fraudulent 
practices,  has  been  induced  to  purchase  goods,  and 
after  their  receipt  discovers  the  fraud,  he  may  re- 
scind, or  may  affirm  and  have  his  action  for  the  de- 
ceit. But  if,  before  delivery  of  the  goods,  he  has 
discovered  the  fraud,  he  may  not  then  accept  the 
goods  and  still  have  an  action  for  the  deceit.  He 
had  sustained  no  injury  prior  to  the  discovery  of 
the  fraud.  He  was  under  no  legal  obligation  to 
execute  a  contract  imposed  upon  him  through  fraud. 
Fraud  without  damage,  fallen  or  inevitable,  is  not 
actionable.  The  loss  arises  from  his  acceptance  of 
the  goods.  This  being  done  with  knowledge  of  the 

58.     Cain  v.  Dickinson.  60  N.  H.  371. 

69.     Childs  v.  Merrill,  63  Vt.  463;   22  Atl.  626;  14  L.  R.  A.  264. 


346  THE  LAW  or  WAIVEB. 

fraud,  he  has  voluntarily  brought  upon  himself  the 
injury.  Volenti  non  fit  injuria.  With  respect  to  an 
executory  contract  voidable  by  reason  of  fraud,  the 
defrauded  party,  with  knowledge  of  the  deceit  prac- 
ticed upon  him,  may  not  play  fast  and  loose.  He 
cannot  approbate  and  reprobate.  He  must  deal 
with  the  contract  and  with  the  wrong-doer  at  arm's 
length.  He  may  not,  with  knowledge  of  the  fraud, 
speculate  upon  the  advantages  or  disadvantages  of 
the  contract,  receiving  its  benefits  and  at  the  same 
time  repudiating  its  obligations"60. 

Sec.  347.  But  if  the  contract  be  not  wholly  ex- 
ecutory, different  principles  obtain.  For  if  the 
party  complaining  of  the  fraud  has  partly  per- 
formed his  part  of  the  contract  before  learning  of 
the  deceit  practiced  upon  him,  he  may  maintain  an 
action  for  the  fraud  even  though  he  proceed  to  full 
performance  of  his  contract61.  In  line  herewith,  it 
has  been  further  said:  "As  regards  what  have 
been  termed  consistent  remedies,  the  suitor  may, 
without  let  or  hindrance  from  any  rule  of  law,  use 
one  or  all  in  any  given  case.  He  may  select  and  adopt 
one  as  better  adapted  to  work  out  his  purpose  than 
the  others,  but  his  choice  is  not  compulsory  or  final, 
and  if  not  satisfied  therewith,  he  may  commence 

60.  Kingman  &  Co.  v.   Stoddard,   85   Fed.   940;   29   C.   C.  A.   413;   57 

U.    S.   App,    879. 
Simon  v.  Goodyear  Co..  105  Fed.  573  ;  44  C.  C.  A.  612 ;  52  L.  R. 

A.    745. 

Saratoga  Co.  v.  Row.   24  Wend.  74;   35  A.  D.  598. 
Gilmer  v.  Ware.  19  Ala.   252. 

Minn.  Thresher  Co.  v.  Grubeu,  6  Kans.  App.  665  ;  50  Pac.  67. 
Grindrod  v.  Ango-Am.  Bond  Co.,  85  Pac.  891. 
Brown  t\   Waters,   7   Neb.   424. 
Males  v.  Lowenstein,   10  Oh.  St.  512. 
Downer  v.   Smith.   32  Vt.   1;   36  A.  D.   148. 

61.  Haven  v.  Neal.  43  Minn.  315;   45  N.  W.   612. 
Whitney  v.  Allaire,  4  Denio  554 ;  see,  1  N.  T.  305. 
Mallory  v.  Leach,  35  Vt.  156;  82  A.  D.  625. 
Nauman  v.  Oberle,   90  Mo.   666;   3   S.  W.  380. 


TORTS.  347 

and  carry  through  the  prosecution  of  another. 
Thus,  where  a  sale  of  chattels  is  induced  by  the 
fraud  of  the  vendee,  the  vendor  may  prosecute  the 
vendee  for  the  price  of  the  articles  in  one  action, 
and  in  another  for  damages  on  account  of  the  fraud ; 
both  proceeding  on  the  theory  of  ratifying  the  sale. 
But  he  cannot  maintain  either  if  he  has  rescinded  the 
sale,  or  if,  on  the  theory  of  rescission,  he  has  re- 
sorted to  replevin  to  recover  the  property.  No 
suitor  is  allowed  to  invoke  the  aid  of  the  courts 
upon  contradictory  principles  of  redress  upon  one 
and  the  same  line  of  facts"62. 

3.  CONVERSION:— Sec.  348.  That  the  owner 
of  property  wrongfully  obtained  by  another  may 
waive  his  right  of  action  for  the  wrong  and  sue  for 
the  value  of  the  property  is  a  principle  upon  which 
all  the  courts  agree,  with  the  proviso  that  the  prop- 
erty has  been  changed  into  money  or  its  equivalent 
by  the  wrong-doer63.  But  on  this  proviso  there  is  a 
hopeless  division  of  opinion.  It  was  in  an  early  day 
universally  held  that  unless  the  property  had  been 
so  converted  into  money  or  its  equivalent  that  the 
action  must  be  ex  delicto  and  could  not  be  upon  an 
implied  agreement  to  compensate  the  owner  for  the 
value  of  the  property64 ;  and  this  has  been  held  even 

62.  7   Enc.   PI.   &  FT.,   362. 

63.  White  v.  Brooks,   43   N.  H.   402. 
Staat  v.  Evans,  35  HI.  455. 
Crow  v.  Boyd,  17  Ala.  51. 
Halleck  v.  Mixer,   16  Cal.  574. 
Shaw  v.  Coffin,   58   Me.   254. 

•4.     Jones  v.  Hoar,  5  Pick.  289. 

Watson  v.  Stever,  25  Mich.  386. 

Moses  v.  Arnold,   43   la.   187. 

Pike  v.  Wright,  29  Ala.  332. 

Mann  v.  Locke,   11  N.  H.  246. 

Randolph  v.  Elliott,  34  N.  J.  L.   184. 

Center  Turnpike  Co.  v.  Smith,  12  Vt.  212. 

Webster  v.  Drinkwater,   5  Greenl.   319 ;   17  A.  D.  288. 

Stears  v.  Dillingham,  22  Vt.  624;   54  A.  D.  88. 


348  THE  LAW  OP  WAIVER. 

where  the  property  had  been  exchanged  for  other 
property65,  the  court  saying  that  a  sale  and  an  ex- 
change were  entirely  different  matters.  And  it  was 
held  that  the  action  was  not  brought  to  recover  the 
reasonable  value  of  the  property,  but  that  the  owner 
was  limited  in  the  amount  of  his  recovery  to  the 
amount  received  for  it  by  the  tort-feasor66. 

Sec.  349.  But  the  above  doctrines  have  not  re- 
ceived unanimous  concurrence  by  the  modern 
courts,  and  a  more  liberal  policy  has  been  an- 
nounced. Good  reason  would  seem  to  dictate  that 
the  wrong-doer  should  be  subject  to  either  form 
of  action  that  the  owner  might  elect  to  invoke;  for 
the  action  is  the  result  of  his  own  conduct  and  arises 
from  his  own  voluntary  act.  The  owner  should  be 
permitted  to  waive  the  tort  and  sue  upon  an  implied 
contract  or  agreement  to  pay  the  reasonable  value 
of  the  property  whether  converted  into  cash  or  not. 
Such  action  does  not  impair  the  rights  of  the  tort- 
feasor,  for  therein  he  has  the  right  of  set-off  which 
would  be  denied  him  were  the  owner  not  allowed 
to  elect  such  remedy,  he  could  clearly  not  be  sub- 
jected to  the  hazard  of  a  second  action  for  the  same 
matter,  and  the  owner  would  be  restricted  in  his  re- 
covery to  the  simple  value  of  the  property,  while  in 
an  action  ex  delicto  the  plaintiff  might  obtain  a 
judgment  in  excess  of  such  value.  As  was  said  in 
an  early  case  announcing  this  doctrine:  "No  party 
is  bound  to  sue  in  tort,  where  by  converting  the  ac- 
tion into  an  action  on  contract  he  does  not  preju- 
dice the  defendant;  and,  generally  speaking,  it  is 
more  favorable  to  the  defendant  that  he  should  be 

6B.     Fuller  v.  Duren,  36  Ala.  78. 
66.     Rand  v.  Nesmlth,   61  Me.  111. 
Pearsoll  v.  Chapin,   44  Pa.   St.   9. 


TORTS.  349 

sued  in  contract,  because  that  form  of  action  lets  in 
a  set-off  and  enables  him  to  pay  the  money  into 
court"67.  And  in  accordance  with  such  principles, 
it  has  been  said  that  the  tort-feasor  shall  not  be  al- 
lowed to  set  up  his  own  wrongful  intent  in  disap- 
proval of  the  implied  promise  which  the  law  would 
otherwise  raise  against  him68.  The  matter  has  been 
well  put  as  follows:  "In  some  of  the  states  it  has 
been  denied,  and  such  denial  placed  upon  the  ground 
that  the  property  remained  in  the  hands  of  the 
wrong-doer,  and,  therefore,  no  money  having  been 
received  by  him  in  fact,  an  implied  promise  to  pay 
over  the  money  had  and  received  by  the  defendant 
to  the  plaintiff's  use  did  not  and  could  not  arise. 
Such  was  the  case  of  Jones  v.  Hoar,  5  Pick.  285. 
But  the  great  weight  of  authority  in  this  country 
is  in  favor  of  the  right  to  waive  the  tort  even  in 
such  case.  If  the  wrong-doer  has  not  sold  the  prop- 
erty, but  still  retains  it,  the  plaintiff  has  the  right 
to  waive  the  tort  and  proceed  upon  an  implied  con- 
tract of  sale  to  the  wrong-doer  himself,  and  in  such 
event  he  is  not  charged  as  for  money  had  and  re- 
ceived by  him  to  the  use  of  the  plaintiff.  The  con- 
tract implied  is  one  to  pay  the  value  of  the  property 
as  if  it  had  been  sold  to  the  wrong-doer  by  the 
owner.  If  the  transaction  is  thus  held  by  the  plain- 
tiff as  a  sale,  of  course  the  title  to  the  property 

67.  Young  v.  Marshall,  8  Bing.  43;    (21  E.  C.  L.  215). 

68.  Butts  v.  Collins,   13  Wend.   153. 

Ford  v.  Caldwell,  3  Hill    (S.  Car.)    248. 
See  Article  by  Cooley,  3  Alb.  L.  J.  141. 
Halleck  v.  Mixer,  16  Cal.  574. 
Barker  v.  Cory,  15  Oh.  9. 


350  THE  LAW  OP  WAIVES. 

passes  to  the  wrong-doer  when  the  owner  elects  so 
to  treat  it"69. 

Sec.  350.  So,  it  is  said  that  the  doctrine  that  in 
cases  where  property  has  been  severed  from  real 
estate  by  a  wrong-doer,  carried  from  the  freehold 
and  converted  to  his  own  use,  the  rightful  owner 
may  sue  and  recover  its  value  as  on  an  implied  con- 
tract, is  well  established70.  And  where  one  had  torn 
down  the  fence  of  another  and  turned  his  cattle  on 
the  latter 's  pasture,  a  bill  for  pasturage  was  al- 
lowed as  a  counter-claim  in  an  action  brought  by 
the  former71.  Where  plaintiff  raised  a  crop  on 
shares  on  defendant's  land,  and  the  latter  wrong- 
fully took  possession  of  the  entire  crop,  the  plaintiff 
was  permitted  to  sue  for  the  value  of  his  part  of  the 
crop72.  A  person  receiving  money  from  another 
for  a  particular  purpose,  to  which  he  does  not  apply 
it,  may  be  sued  either  for  money  had  and  received 
or  for  a  breach  of  trust73.  A  bank  paying  a  deposit 
to  the  wrong  person  may  be  sued  by  the  one  enti- 
tled to  it  as  a  debtor  for  the  deposit,  or  the  person 
receiving  the  money  may  be  sued  for  money  had 
and  received;  but  by  electing  to  bring  one  action, 
the  owner  waives  the  other74.  This  is  upon  the 

69.  Terry  v.  Munger,  121  N.  T.  161;  24  N.  E.  272;  18  A.  S.  R.  803; 

8   L.    R.    A.    216. 

Pomeroy,  Remedies  2d  Ed.  667-9. 
Abbott  v.  Blossom,   66   Barb.   353. 
May  v.  Le  Claiare,  11  Wall.  217;  20  L.  Ed.  607. 
Hill  v.  Davis,  31  N.  H.  384. 
Allen  v.  U.  S.,  17  Wall.  207;  21  L.  Ed.   B53. 

70.  Downs  v.  Flnnegan,   58   Minn.  113;   59  N.  W.   981;    49  A.   S.   R 

488. 
22  Am.  &  Eng.  Enc.  L.  389. 

71.  Norden  v.  Jones,  33  Wis.   600;   14  A.  R.  782. 

72.  Fiquet  v.  Allison.  12  Mich.  328;  86  A.  D.  64. 
McLaughlin  v.  Salley,   46  Mich.   219. 

7S.     Taylor  v.  Benham,  6  How.  233 ;  12  L..  Ed.  180. 
74.     Fowler  v.  Bowery  Savings  Bank,   113  N.  T.  450;   11  W.  E.  172; 
10  A.  S.  R.  479  ;  4  L.  R.  A.  145. 


TORTS.  351 

principle  governing  the  election  of  remedies  that 
where  they  are  not  concurrent  a  choice  between 
them  once  made  is  conclusive  and  precludes  the 
right  to  go  back  and  choose  again75. 

4.  EFFECT  OF  WAIVER:— Sec.  351.  The 
election  of  remedies  between  the  rights  arising  ex 
delicto  and  ex  contractu,  which  election  results  nec- 
essarily in  the  waiver  of  one,  can  be  indicated  only 
by  the  theory  of  the  pleadings  which  the  plaintiff 
adopts.  Nothing  can  be  ascertained  from  the  form 
of  the  pleadings  under  the  code,  for  there  is  but 
one  form  of  action,  and  the  election  or  character  of 
the  action  is  to  be  determined  from  the  general 
scope  and  tenor  of  the  pleadings76.  The  results  of 
electing  between  such  remedies  may  be  far  reach- 
ing, as  defenses  may  be  made  to  one  action  which 
could  not  be  made  to  another ;  as  where  an  infant  is 
sued  in  contract  instead  of  in  tort,  the  plea  of  in- 
fancy might  release  him  from  liability  while  it 
would  not  if  the  remedy  in  tort  had  been  chosen77. 
And  a  right  of  set-off  may  exist  in  an  action  ex  con- 
tractu which  could  not  avail  in  an  action  ex  delicto1*. 
And  an  action  on  contract  might  let  in  a  plea  of  the 

75.  BigeJow,   Estoppel,    578. 
Herman,  Estoppel,  461. 
Pomeroy,  Remedies,  570. 

Sumner  v.  Rogers,   90  Mo.   324 ;   2  S.  W.   476. 

Hughes  v.  Vt.  Cop.  Min.  Co.,  72  N.  T.  209. 

Becker  v.  Walsworth,  45  Oh.  St.  169 ;  12  N.  E.  1 ;  10  West.  Rep. 

431. 

Thompson  v.  Howard,  31  Mich.  309. 

Agnew  v.  McElroy.  10  Smedes  &  M.  552;  48  A.  D.  772. 
Walsh  v.  ChesapeaV-e,  etc.  Co.,  59  Md.  423. 

76.  Neidefer  v.  Chastain.  71  Ind.  363;  36  A.  R.  198. 

77.  Walker  v.  Davis,   1  Gray,   506. 
Vasse  v.  Smith,   6  Cranch   225. 
Elwell   v.   Martin,   32   Vt.    217. 
Studwell  v.  Shapter,   54   N.   Y.   249. 
Carpenter  v.   Carpenter,   45   Ind.   142. 

78.  Chambers  v.  Lewis,  11  Abb.  Pr.  206. 
Allen  v.  Randolph,  48  Ind.  496. 


352  THE  LAW  OP  WAIVER. 

statute  of  limitations  not  available  in  an  action  in 
tort79.  And  a  judgment  in  an  action  on  contract 
might  be  defeated  by  a  plea  of  exemptions  which 
could  not  be  invoked  in  an  action  in  tort80. 

While  the  results  of  a  waiver  of  the  right  to  sue 
in  tort  consequent  upon  an  election  to  proceed  on 
contract  are  permanent  and  irrevocable,  a  plaintiff 
is  not  always  precluded  from  choosing  a  second 
time  where  his  defeat  in  the  first  choice  was  solely 
because  he  did  not  pursue  the  proper  remedy/1. 

79.  Huffman  v.  Hughlett,  11  Lea  549    (Term.). 
Lane  v.   Boi court,   128  Ind.   420. 

80.  Warner  v.   Cammack,   37   la.    642. 
Schouton  v.  Mclntosh,   89  Ind.  593. 
Davis  v.   Henson,    29   G-a.   345. 

81.  Farwell  v.   Myers,    59   Mich.    179. 
Bulkley  v.  Morgan,  46  Conn.  393. 
Baley  v.  Hervey,  135  Mass.  172. 
Strong  v.  Strong,   102  N.  T.   69. 


PLEADING.  353 


CHAPTER  14. 
PLEADING. 

1.  WAIVER  BY  APPEARANCE: 

Section 

A.  Defects  In  Process 352 

(1)  Special  appearance 362 

(2)  Exemption  from  service 366 

B.  Jurisdiction — 

(1)     Over  subject-matter  367 

2.  DEFECTS  IN  COMPLAINT: 

A.  In  General 370 

B.  By  Answering   373 

C.  Mis-Joinder — 

(1)  Of  parties   375 

(2)  Of  causes  of  action 376 

D.  Incapacity  Of  Plaintiff 377 

E.  Waiver  Of  Error  In  Overruling  Demurrer 378 

F.  Objections  To  Venue 379 

3.  IN  ATTACHMENTS  AND  GARNISHMENTS: 

A.  Defects  In  Affidavit .382 

B.  Defects   In   Writ 383 

C.  Waiver  Of  Attachment  Lien 384 

D.  Waiver  By  Garnishee 385 

4.  IN  CRIMINAL  PROCEEDINGS: 

A.  Jurisdiction   386 

B.  No  Offense  Charged  In  Indictment 388 

C.  Former  Jeopardy 389 

1.    WAIVER  BY  APPEARANCE— 

!AL  DEFECTS  IN  PROCESS :— Sec.  352.  It 
is  not  always  essential  to  the  validity  or  binding 
effect  of  a  proceeding  against  a  defendant  that  sum- 
mons should  have  been  either  regularly  issued  or 
served  upon  him.  In  fact,  various  codes  provide 
that  after  the  filing  of  a  complaint  the  defendant 
may  appear,  answer  or  demur,  and  in  any  such 
event  the  issuance  and  service  of  summons  shall  be 
deemed  to  have  been  waived.  The  function  of  a 
Bummons  is  to  get  the  defendant  before  the  court, 
a  method  of  bringing  him  in  involuntarily.  And  if 


354  THE  LAW  or  WAIVES. 

lie  see  fit  to  forego  his  right  to  have  the  action  pro- 
ceed formally,  to  submit  his  side  of  the  controversy 
voluntarily  to  the  court,  his  action  in  so  doing  will 
have  the  same  effect  as  if  the  matter  had  proceeded 
with  strict  formality.  In  other  words,  the  issuance 
or  service  of  summons  may  be  waived  by  the  de- 
fendant, and  such  waiver  will  be  inferred  from  his 
general  appearance  in  the  case.  And  by  such  waiv- 
er the  defendant  invokes  the  judgment  of  the  court 
and  submits  himself  to  its  jurisdiction,  after  which 
he  cannot  be  heard  to  say  that  it  has  not  power  to 
bind  him82.  Even  informalities  in  the  commencing 
of  an  action  may  be  waived  together  with  the  waiver 
of  process,  as  where  a  proceeding  was  commenced 
by  a  motion  and  the  parties  went  to  trial 
without  the  issuance  and  service  of  process,  an  ob- 
jection that  the  proceeding  was  by  motion  and  no- 
tice instead  of  action  and  summons  was  overruled83. 

Sec.  353.  The  same  matters  that  waive  issu- 
ance and  service  of  process  are  equally  available  as 
a  waiver  of  defects  or  irregularities  in  the  issuance, 
service  or  return  thereof84,  for  such  is  equivalent  to 
personal  service85.  And  while  a  defendant  has  the 

82.  Sealy  v.   Cal.  Lbr.   Co.,   19   Oreg.   94;   24  Pac.  197. 

Boulder  Sanitorlum  v.  Vanston,   14   N.   Mex.   436  ;   94  Pac.   945. 

83.  Hawkins  v.  Taylor,  56  Ark.  45;   19  S.  W.  105;  35  A.  S.  R.  82. 
14.     Tex.  Ry.  Co.  v.  Cox,   145  U.  S.   6S3;   12  Sup.   Ct.  R.  905. 

Yaeger  v.  City,   39  111.  App.   21. 

Mason,  etc.  v.  Griffin,   134   111.  330;   25  N.  E.   995. 

Hall  v.  Craig,  125  Ind.  523;  25  N.  E.  538. 

Rose  v.  Richmond  Co.,  17  Nev.  25;  27  Pac.  1105. 

Orear  v.   Clough,   52  Mo.   55. 

German  Bank  v.  Ins.  Co..  83  la.  491 ;  50  N.  W.  53 ;  32  A.  S.  R. 

316. 

Bar  hour  v.  Newkirk,  83  Ky.   529. 
Hazard  v.  Wason.  152  Mass.  268;   25  N.  E.  465. 
Haussman  v.   Burnham,  59  Conn.   117;   22  Atl.   1065. 
Kaw  Assoc.  v.  L/emke,   40   Kans.   142;   19  Pac.  337. 
9i.     Naye  v.  Noezel,  50  N.  J.  L.   523;   14  Atl.  750. 
Dikeman  v.  Struck,   76  Wis.   332  ;   45   N.  W.  118. 
Stamphill  v.  Franklin   Co.,   86  Ala.   392;   5   So.   487. 


PLEADING.  355 

right  to  require  summons  to  be  issued  and  served 
upon  him  before  the  court  can  exercise  its  power 
over  him  or  his  property,  and  also  the  right  to  de- 
mand that  such  issuance  and  service  of  process 
shall  be  regular  in  all  details  and  in  strict  compli- 
ance with  legal  requirements,  still  the  latter  right, 
as  well  as  the  former,  he  may  forego  or  waive,  and 
any  act  of  his  will  be  sufficient  to  constitute  such 
waiver  if  it  evince  an  intention,  or  support  the  in- 
ference that  the  defect  or  irregularity  will  not  be 
taken  advantage  of.  Therefore,  if  he  desire  to  uti- 
lize the  defect  as  a  means  of  escape,  he  must  himself 
proceed  properly.  If  he  claim  that  the  court  has 
acquired  no  jurisdiction  over  his  person  by  reason 
of  defects  or  irregularities  in  the  process  or  service 
thereof,  his  remedy  is  by  special  appearance  and 
objection  to  the  jurisdiction,  and  if  he  go  further 
and  enter  a  general  appearance,  or  invoke  the 
powers  of  the  court  for  any  other  purpose  than 
quashing  the  pretended  process  or  service  thereof, 
the  defects  are  thereby  waived86.  And  when  he 
makes  such  special  appearance,  he  must  stand  by 
his  guns  or  surrender  his  advantage;  for,  though 
he  may  attempt  by  motion  and  then  by  plea  to  quash 
the  summons  or  service  of  same,  lie  waives  the  de- 
fects therein  by  answering  to  the  merits  after  the 
motion  and  plea  have  been  determined  adversely 
to  him87. 

Sec.  354.    It  being  the  universal  rule  that  a  gen- 

16.  Baker  v.  Bank,  63  Neb.  801;  89  N.  W.  269;  93  A.  S.  R.  484. 
Omaha   Bank  v.  Knigrht,   50   Neb.   342;    69   N.   W.   933. 

Ley  v.  Pilger,   69  Neb.  561;   81  N.  W.  507. 

17.  Union  Pac.  Co.  v.  De  Busk,  12  Colo.  294  ;  20  Pac.  752 ;   13  A.  S. 

R.   221. 

Ruby  Co.  v.  Gurley,  17  Colo.  199;  29  Pac.  668. 
Sears  v.  Starbird,  7S  Cal.  225 ;  20  Pac.  547. 
Campbell  Co    v.  Marsh,  20  Colo.  22  ;  36  Pac.   799. 


356  THE  LAW  OP  WAIVER. 

eral  appearance  of  a  defendant  constitutes  a  waiver 
of  the  issuance  of  process  or  of  defects  and  irregu- 
larities therein,  it  is  necessary  to  notice  what  is  a 
sufficient  appearance  to  produce  such  effect.  His 
appearance  is  evidenced  by  his  filing  in  the  action 
his  answer,  demurrer  or  a  notice  to  the  plaintiff 
that  he  appears  in  the  case88.  And  in  such  cases  as 
those  under  consideration  it  is  immaterial  that  the 
defendant  was  ignorant  of  the  irregularities  that 
would  have  rendered  the  proceeding  void,  until 
after  he  had  made  his  appearance.  In  one  case 
where  only  this  question  was  involved,  the  court 
said:  ''Without  saying  whether  this  writ  is  abso- 
lutely void,  we  are  clear  that  it  cannot  be  set  aside 
at  this  stage  of  the  cause.  The  defendant  has  taken 
a  step  by  which  he  is  regularly  in  court,  whether 
there  be  any  process  or  not.  We  will  not  interfere 
merely  because  the  party  acted  in  ignorance  that 
the  process  was  void"89. 

Sec.  355.  The  particular  facts  which  may  ren- 
der a  summons  or  the  service  thereof  defective  are 
matters  with  which  we  are  not  here  concerned.  The 
process  may  be  irregular  in  form  or  defective  in 
substance;  and  the  service  may  be  defective  either 
because  made  by  an  incompetent  person,  or  upon  a 
person  not  authorized  to  receive  it,  or  at  a  time  or 
place  where  the  service  was  unauthorized,  or  be- 
cause some  act  prescribed  by  law  has  been  omitted. 
And  in  any  of  such  events  the  proceeding  will  be 

88.  Walla  Walla  Pub.  Co.  v.  Budd,  2  Wash.  Ter.  336;  5  Pac.  602. 
McCoy  v.  Bell,   1  Wash.   St.   504;   20  Pac.  595. 

Steinbach  v.  Leese,  27  Cal.  297. 
Wyatt  v.  Freeman,  4  Colo.  14. 
Smith  v.  Arapahoe  Co.  Ct.,  4  Colo.  235. 

89.  Plxley  v.  Wlnchell,  7  Cowen  366;  17  A.  D.  525;  followed  in: 
Gardner   v.   Teller,    2    How.   Pr.    241. 

Hubbell  v.  Dana,   9  How.  Pr.   425. 
Coppernoll  v.  Ketcham,   56   Barb.   113. 


PLEADING.  357 

vacated  upon  motion  interposed  before  final  judg- 
ment unless  the  defendant  has  entered  his  general 
appearance  in  the  action,  or  has  by  other  conduct 
voluntarily  waived  the  irregularity90. 

Sec.  356.  But  it  is  necessary,  in  order  that  a 
waiver  may  be  deduced  from  the  conduct  of  a  de- 
fendant, that  he  should  make  an  actual  appearance 
in  the  case,  or  do  something  equivalent  thereto.  A 
recital  in  the  record  of  the  clerk  that  the  defendant 
had  appeared  at  a  previous  term  is  not  sufficient91. 
Nor  will  a  motion  to  set  aside  a  default  -entered 
against  several  defendants  who  were  served  be  held 
such  an  appearance  as  will  waive  the  failure  to 
serve  other  defendants92.  But  the  question  whether 
an  alleged  appearance  is  to  be  held  a  waiver  in  such 
cases  does  not  resolve  itself  into  a  mere  determina- 
tion of  the  intention  of  the  defendant93 ;  for  the  ap- 
pearance for  the  purpose  of  contesting  the  merits 
of  the  cause,  whether  by  motion  or  by  formal 
pleading,  is  a  waiver  of  all  objection  to  the  juris- 
diction of  the  court  over  the  person  of  the  defend- 
ant, whether  he  intended  such  waiver  or  not94.  And 
the  same  is  true  if  he  in  any  manner  invokes  the 
aid  of  the  court  without  questioning  its  jurisdiction 
over  his  person95.  This  is  upon  the  well-established 
principle  that  he  who  has  the  right  to  object  to  such 

90.  Falvey  v.  Jones,  80  Ga.  130;  4  S.  E.  264. 

91.  Kimball  v.  Merrick,   20  Ark.   12. 

92.  Klemm  v.  Dewes,  28  111.  317. 

93.  Wabash  Ry.  Co.  v.  Brow,  164  U.  S.  271;  17  Sup.  Ct.  R.  126. 

94.  Handy  v.   Ins.   Co.,   37   Oh.    St    366. 

Sentenis  v.   Ladew,    140   N.  T.   463;   35  N.   E.    650. 
Meixell  v.  Kirkpatrick,   29   Kans.   679. 
Shafer  v.  Hockheimer,  36  Oh.  St.  215. 

95.  Mason  v.  Alexander,  44  Oh.  St.  318  ;  7  N.  E.  435. 
Davis  v.  Wood,  7  Mo.  162. 

Murat  v.  Hutchinson,  1  Harr    46    (N.  J.). 

Reeder  v.  Murray,  3  Ark.  450. 

Cartwright  v.  Chabert,  3  Tex.  261 ;  49  A.  D.  742. 


358  THE  LAW  OF  WAIVER. 

defects  or  irregularities  must  do  so  promptly  and 
at  the  first  opportunity  before  the  party  committing 
the  error  has  taken  any  further  steps  in  the  cause 
or  been  misled  into  a  reasonable  belief  that  the  ob- 
jection is  not  to  be  urged06. 

Sec.  357.  Thus,  a  waiver  of  such  objections  oc- 
curs where  the  defendant  moves  to  vacate  a  judg- 
ment for  want  of  jurisdiction  over  his  person,  and 
then  consents  to  a  dismissal  of  the  motion97;  or 
files  a  motion  to  strike  from  the  files  all  the  papers 
in  the  case  for  defects  and  irregularities98;  or 
moves  to  dismiss  for  want  of  jurisdiction  over  the 
subject-matter,  his  motion  being  overruled99,  or 
causes  to  be  given  a  bond  to  stay  execution100 ;  each 
of  such  acts  constitutes  a  general  appearance  of  the 
defendant.  A  voluntary  appearance  being  equiva- 
lent to  service  of  summons  gives  the  court  juris- 
diction over  the  defendant,  even  though  the  answer 
constituting  the  appearance  expressly  reserves  the 
right  to  object  to  the  jurisdiction  of  the  court1.  And 
if  he  appears  specially  and  obtains  an  order  setting 
aside  service  of  the  summons,  he  will  be  held  to 
have  waived  further  process  by  submitting  the 
cause  on  a  demurrer  to  the  bill2.  And  if  a  defend- 
ant against  whom  a  default  judgment  has  been  ren- 
dered asks  to  have  the  decree  set  aside  for  the  rea- 
son that  the  court  had  no  jurisdiction  over  his  per- 
son and  for  the  further  reason  that  fraud  and  deceit 
had  been  practiced  upon  him  and  that  there  was  no 
evidence  to  support  the  decree,  such  appearance  is 

96.  Beall  v.  Blake,  13   Ga.   217;   58  A.  D.   513. 

97.  Marsden  v.  Soper,  11  Oh.  St.  503. 

98.  Maholm  v.  Marshall,   29   Oh.   St.   611. 

99.  Elliott  v.  Lawhead,  43  Oh.  St.  171. 
100.  Shafer  v.  Hockheimer,   36  Oh.   St.   215. 

1.  Mahaney  v.  Penman,  4  Duer  603. 

2.  Leute  v.  Clark,  22  Fla.  515  ;  1  So.  149. 


PLEADING.  359 

general  and  is  a  waiver  of  any  defects  in  the  serv- 
ice of  process3. 

Sec.  358.  A  holding  above  adverted  to  was  to 
the  effect  that  a  defendant  appearing  and  putting 
in  an  answer  and  proceeding  to  a  trial  on  the  merits 
waives  defective  service  of  process  and  gives  the 
court  jurisdiction  over  his  person,  notwithstanding 
his  appearance  in  the  first  instance  was  for  the  spe- 
cial purpose  of  objecting  to  the  jurisdiction  of  the 
court  and  the  subsequent  proceedings  on  his  part 
were  accompanied  by  a  protest  against  jurisdic- 
tion4. But  this  holding  is  not  adhered  to  by  a  ma- 
jority of  the  courts,  and  in  fact  a  contrary  doctrine 
is  announced  by  most  courts  and  is  supported  by 
the  better  reason.  When  the  defendant  has  made 
the  record  show  a  proper  objection,  he  has  done 
all  he  can  do,  and  should  not  be  compelled,  after 
the  overruling  of  his  objection,  to  desert  the  case 
and  leave  the  opposite  party  to  take  judgment  by 
default5.  It  will  be  seen  from  the  above  citation 
that  the  Supreme  Court  of  the  United  States  lends 
the  weight  of  its  authority  to  the  principle  that  a 
party  not  properly  served  with  process  so  as  to  give 
the  court  jurisdiction  over  his  person,  does  not 
waive  the  objection  or  confer  jurisdiction  by  an- 


3.  Yorke  v.  Torke,  2  N.  Dak.  343  ;   55  N.  W.   1095. 

4.  Union    Pac.    Co.    v.    De    Busk,    12    Colo.    294;    20    Pac.    752;    1    A.    *. 

R.   221. 

See,  also :  Baker  v.  Bank,  63  Neb.  801 ;   89  N.  W.  269  ;   98  A.   S. 
R.  484. 

5.  Steamship  Co.  v.  Tugman,   106  U.  S.  118. 
Jones  v.  Jones,  108  N.  Y.  415;  15  N.  E.  707. 
Dlckerson  v.  Burlington  Co.,  43  Kans.  702  ;  23  Pac.  936. 
Lynmn  v.  Milton,   44  Cal.  630. 


360  THE  LAW  OF  WAIVES. 

swering  over  and  going  to  trial  on  the  merits  after 
he  has  ineffectually  objected  to  the  jurisdiction6. 

Sec.  359.  But  without  reserving  properly  such 
objections,  a  waiver  of  issuance  or  service  of,  or 
defects  in  process  is  waived  if  the  defendant  file  a 
demurrer  to  the  complaint7,  and  answer8,  agree- 
ment for  a  continuance9,  taking  a  stay  of  the  order 
of  sale  in  a  foreclosure  case10,  or  filing  exceptions 
to  a  Commissioner's  report11.  And  of  course  such 
waiver  may  be  produced  by  the  written  acknowl- 
edgment of  service  and  a  consent  by  the  defendant 
that  the  cause  may  proceed  as  if  summons  had  been 
regularly  issued  and  served12,  although  the  con- 
trary has  been  held  by  a  court13,  which  later  at- 
tempted to  explain  its  holding14.  And  a  waiver 
may  occur  even  after  judgment,  for  if  a  defendant 

6.  Harkness  v.  Hyde,   98  U.   S.   476. 
Dewey  v.  Greene,  4  Denio  94. 
Willing  v.   Beers,   120   Mass.    548. 

Warren  v.  Crane,  50  Mich.  301;  15  N.  W.  465. 

Avery  v.   Slack,   17  Wend.   85. 

Reinstadler  v.  Reeves,  33  Fed.  308. 

Wabash  Ry.  Co.  v.  Brow,  164  U.  S.  271 ;   17  Sup.  Ct.  R.  126. 

Ward  v.  George,   1  Bush  357. 

7.  Willman  v.  Friedman,  4  Idaho  209;  38  Pac.  937;  95  A.  S.  R.  59. 
Hollinger  v.  Reeme,   138  Ind.   262;   36   N.  E.   1114;    46  A.   S.   R. 

402. 

8.  Young  v.  Ross,  31  N.  H.  205. 

German   Bank  v.  Ins.   Co.,    83   la.   491 ;    50   N.   W.    53 ;    32   A.   S. 

R.   316. 
Macon  Ry.   Co.   v.  Gibson,   85   Go.   1 ;   11  S.  B.    442 ;   21  A.   S.   R. 

135. 

9.  Baisley  v.  Baisley,  113  Mo.  544;  21  S.  W.  29;  35  A.  S.  R.  726. 

10.  Franse   v,    Armbuster,    28    Neb.    467;    44    N.    W.    481;    26    A.    S. 

R.   345. 

11.  Newman  v.  Moore.  94  Ky.  147;  21  S.  W.  759;  42  A.  S.  R.  343. 

12.  Laramore  v.  Chastaln,  25  Ga.  592. 
Vermont  Co.  v.  Marble,   20   Fed.   117. 
Dunn  v.  Dunn,   4  Paige,   430. 

Cheney  v.  Harding,  21  Neb.  65;  31  N.  W.  255. 
Ex  Parte,  Schollenberger,   96  U.   S.   369. 
Shaw  v.  National  Bank,  49  la.  179. 
Allured  v.  Voller,  107  Mich.  476  ;  65  N.  W.  285. 

13.  Weatherbee  v.   Weatherbee,   20   Wis.    499. 

14.  Keeler  v.   Keeler,   24  Wis.    522. 


PLEADING.  361 

join  in  an  appeal  from  a  judgment  rendered  in  the 
lower  court,  he  cannot  object  that  no  summons  was 
there  served  upon  him15. 

Sec.  360.  The  cases  and  principles  above  ad- 
verted to  are  equally  applicable  to  a  case  of  mis- 
nomer, that  is,  where  a  defendant  is  sued  by  the 
wrong  name.  A  Mississippi  case  succinctly  states 
this  rule:  "There  are  cases  which  hold  that  one 
sued  and  served  by  a  wrong  name  may  disregard 
the  summons.  All  agree  that  one  summoned  by  a 
name  not  his  own,  and  who  appears  and  does  not 
plead  misnomer,  waives  it  and  is  bound  by  the  judg- 
ment in  the  wrong  name.  There  is  no  sound  reason 
for  a  distinction  in  the  two  classes  of  cases.  The 
true  view  is,  that  one  summoned  by  a  wrong  name, 
being  thus  informed  that  he  is  sued,  although  not 
correctly  described  by  his  true  name,  not  availing 
of  his  opportunity  to  appear  and  object,  should  be 
precluded  from  afterwards  objecting.  Having  re- 
mained silent  when  he  might  and  should  have 
spoken,  he  must  ever  afterward  be  silent  as  to  this 
matter"16. 

Sec.  361.  But  where  an  attorney  appeared  for 
a  defendant  and  obtained  an  order  extending  the 

15.  Harmison  v.  Lewistown,  152.  111.  313  ;   46  A.  S.  R.  893. 
Thorn  v.  Thorn,  47  W.  Va.  4;   34  S.  E.  759. 

16.  Alabama   By.    Co.    v.    Holding,    65    Miss.    255;    13    So.    846;    30    A.    S. 

R.   541. 

1   Black,   Judgments,    Sec.    213. 
Welsh  v.  Kirkpatrick,  30  Cal.  202;   89  A.  D.   85. 
Lafayette  Ins.    Co.   v.   French,    18    How.    404. 
First  Nat'l.  Bank  v.  Jaggers,   31  Md.   38  ;   100  A.  D.   53. 
Hoffield  v.   Board,   33   Kans.   644;    7   Pac.    216. 
Waldrop  v.  Leonard,   22    S.   Car.   118. 
Medway  Co.  v.  Adams,   10  Mass.   360. 
Gulnard  v.  Heysinger,  15  111.  288. 
Parry  v.  Woodson,  33  Mo.  347;  84  A.  D.  61. 
Waterbury  v.   Mather,   16  Wend.   611. 
See  also:  Johnston  v.  Union,   75  Cal.   134;   16  Pac.   753;   7  A.   S. 

R.   129. 


362  THE  LAW  OF  WAIVER. 

time  to  file  a  plea,  such  appearance  cannot  be  re- 
garded as  a  general  appearance  sufficient  to  consti- 
tute a  waiver  of  defects  in  the  service  of  sum- 
mons17. Such  appearance  bears  no  relation  to  the 
merits  of  the  action,  and  cannot  mislead  the  plain- 
tiff into  a  belief  that  no  objection  to  the  defective 
service  is  to  be  raised.  The  same  was  held  true 
where  a  defendant  appeared  in  court  and  asked  for 
a  stay  of  one  day,  and  on  the  following  day  ap- 
peared and  objected  to  irregularities  in  the  proceed- 
ings18. 

(1)  SPECIAL  APPEAKANCE:— Sec.  362. 
Whatever  position  the  various  courts  may  assume 
respecting  waiver,  by  a  general  appearance,  of  sum- 
mons or  defects  in  the  issuance  or  service  thereof, 
no  doubt  is  expressed  among  them  that  a  defendant 
may  appear  for  the  special  purpose  of  objecting  to 
the  jurisdiction  of  the  court  over  his  person  and  not 
thereby  confer  jurisdiction  where  none  existed  be- 
fore. A  different  holding  would  be  fraught  with 
dangers  to  the  whole  system  of  judicial  procedure, 
for  on  the  one  hand  it  would  encourage  a  loose  and 
careless  performance  of  official  duties  in  the  issu- 
ance and  service  of  summons  which  would  constant- 
ly increase;  and,  on  the  other  hand,  it  would  require 
of  a  defendant  that  he  either  submit  himself  to  the 
power  of  the  court  under  process  defectively,  irreg- 

17.  Mulhearn  v.  Press  Co.,  53  N.  J.  L.  150. 

18.  Nelson  v.  Campbell,  1  Wash.  261 ;  24  Pac.  539. 

See  Generally:  Toland  v.  Sprague,  12  Pet.  300    (U.  S.). 

Payne  v.   Bank,    29   Conn.    415. 

Crlstal  v.  Kelley,  88  N.  T.  285. 

Reynolds  v.   Lyon,   20   Ga.   225. 

Louisville  Co.  v.  Nicholson,   60  Ind.  158. 

Anderson   v.    Morris,    12    Wis.    689. 

Lane  v.  Leech,  44  Mich.  163;   6  N.  W.  228. 

Fulbrlght  v.  Cannefox,  30  Mo.  425. 

Harris  v.  Guln,   18  Miss.   563. 


PLEADING.  363 

ularly  or  perhaps  illegally  issued  or  served,  or  that 
he  remain  silent  and  subsequently  incur  the  expense 
and  trouble  of  bringing  a  direct  proceeding  to  set 
aside  a  voidable  judgment. 

Sec.  363.  But  the  contemplation  of  disasters 
that  might  accrue  to  individuals  by  reason  of  a  dif- 
ferent rule  becomes  unnecessary  when  we  examine 
the  cases  bearing  upon  the  point  under  discussion; 
for  their  practically  uniform  holding  is  that  where 
the  summons  is  defectively  or  irregularly  issued  or 
served,  the  defendant  may  appear  specially  in  the 
case  to  have  the  summons  or  service  set  aside19; 
and  by  such  appearance  he  will  not  be  held  to  have 
waived  such  defect  or  irregularity  nor  voluntarily 
submitted  himself  to  the  jurisdiction  of  the  court20. 
In  one  case  the  defendant  set  up  in  a  special  answer 
that  the  service  of  process  was  unlawful  and  dis- 
closed the  facts  constituting  such  illegality.  The 
court  held  that  he  did  not  waive  his  objection  by 
merely  setting  up  the  facts  upon  which  it  was 
based21.  And  the  special  appearance  of  a  non-resi- 
dent defendant  for  the  purpose  of  moving  to  set 
aside  a  judgment  rendered  against  him  by  default 


19.  Kinkade  v.  Myers,  17  Oreg.  470;  21  Pac.  557. 

20.  Smith  v.  Hoover,  39  Oh.  St.  249. 

Reed  v.  Chilson,   142  N.  Y.  152  ;   36  N.  E.   884. 

Chubbuck  v.  Cleveland,  37  Minn.  466;  35  N.  W.  362;  5  A.  S.  R. 

864. 

Shaw  v.  Quincy  Co.,   145  U.  S.   444;  12  Sup.   Ct.  R.   935. 
Brown  v.  Rice,  30  Neb.  236;  46  N.  W.  489. 
Dailey  v.  Kennedy,  64  Mich.  208  ;   31  N.  W.   125. 
Baily  v.  Schrader,  34  Ind.   260. 

Chesapeake  Co.  v.  Heath,  87  Ky.  651;  9  S.  W.  832. 
Simcock  v.  Bank,  14  Kans.  529. 
Law  v.  Nelson,   14   Colo.  409 ;   24  Pac.   2. 
Allen  v.  Lee,  6  Wis.  478. 
Nye  v.  Lisoombe,  21  Pick.   263    (Mass.). 

11.     Chubbuck  v.  Cleveland,  37  Minn.  466;  35  N.  W.  362;   5  A.  B.  R. 
864. 


364  THE  LAW  OF  WAIVEB. 

is  not  a  waiver  of  any  jurisdictional  rights22,  nor 
is  an  appearance  for  the  purpose  of  having  the  ac- 
tion dismissed  for  the  want  of  service,  a  waiver23. 
So,  a  defendant  specially  appearing  for  the  purpose 
of  moving  to  strike  out  an  amended  complaint  and 
asking  for  an  extension  of  time  in  which  to  move 
or  plead  until  the  determination  of  the  motion,  does 
not  make  an  appearance  sufficient  to  waive  service 
of  the  summons  and  the  amended  complaint24.  And 
it  has  been  said  that  the  appearance  of  a  party  after 
judgment  merely  to  give  notice  of  an  appeal  is  not 
such  an  appearance  as  will  by  itself  give  jurisdic- 
tion25. And  it  is  also  said  that  if  a  party  appear 
to  prosecute  a  writ  of  error,  he  must,  upon  reversal 
of  the  judgment,  appear  and  answer  the  same  as  if 
he  had  been  originally  served  with  process26. 

Sec.  364.  Where  defendants  appeared  specially 
and  objected  to  the  jurisdiction  of  the  court  on  the 
ground  that  the  service  of  summons  was  not  suffi- 
cient to  confer  jurisdiction,  and  after  the  court  had 
overruled  this  objection  they  appeared,  generally, 
and  answered,  it  was  held  that  such  appearance  was 
not  voluntary  and  did  not  waive  the  objection  to 
jurisdiction;  nor  was  such  objection  waived  or  any 
jurisdiction  conferred  by  an  appeal  for  the  sole  pur- 
pose of  reviewing  the  question  of  the  sufficiency  of 
the  summons27.  It  was  later  said  in  the  same  state 
that  if  a  special  appearance  to  object  to  jurisdic- 

22.  Paxton  v.  Daniell,  1  Wash.  St.  19;  23  Pac.  441. 
Wright  v.  Boynton,   37   N.   H.   9;    72  A.   D.   319. 

23.  Merrill  v.  Houghton,  51  N.  H.  61. 
March  v.  East.  Ry.  Co.,  40  N.  H.  583. 

24.  Powers  v.  Braly,  75  Gal.  237;  17  Pac.  197. 
26.     McKinney  v.  Jones,  7  Tex.  598 ;  58  A.  D.  83. 

De  Witt  v.  Monroe,  20  Tex.  293. 

26.  Woolford  v.  Dugan,   2  Ark.   131 ;   35  A.  D.   52. 

See,  also :  Holden  v.  Haserodt,  2  S.  Dak.  220 ;  49  N.  W.  97. 

27.  Miner  v.  Francis,  3  N.  Dak.  549;   38  N.  W.  343. 


PLEADING.  365 

tion  is,  after  the  objection  is  overruled,  followed  by 
a  general  appearance,  the  question  of  jurisdiction 
is  not  open  to  collateral  attack28 ;  the  conclusion  de- 
ducible  therefrom  being  that  the  jurisdiction  would 
be  subject  to  direct  attack.  An  appearance  of  thd 
defendant  under  protest  at  a  time  to  which  an  ad- 
journment of  a  cause  had  been  improperly  had,  can- 
not have  the  effect  of  reviving  process  which  has 
failed  from  the  non-appearance  of  the  plaintiff  at 
the  time  named  in  the  writ29. 

Sec.  365.  Of  course  a  party  may  appear  either 
generally  or  specially  by  attorney  the  same  as  per- 
sonally, and  such  appearance  is  equally  binding 
upon  him.  And  it  is  said  that  in  a  suit  against  an 
infant  where  the  summons  is  not  served  upon  him, 
his  guardian  may  appear  and  answer  for  him  and 
the  court  will  thereby  obtain  jurisdiction  over  their 
persons30.  But  this  doctrine  is  more  properly  de- 
nied31. 

28.  Parsons  v.  Venzke,  4  N.  Dak.  452;  61  N.  W.  1036;  50  A.  S.  R. 

669. 

29.  Martin  v.  Fales,  18  Me.  23:  36  A.  D.  693. 

See  Generally:  Green  v.  Green,   42  Kans.   654;   22  Pac.  730. 
Chahoon  v.  Hollenback,  16  Serg.  &  R.  425 ;  16  A.  D.  587. 
Dailey  v.  Kennedy,  64  Mich.  208;  31  N.  W.  125. 
Chesapeake  Ry.  Co.  v.  Heath,  87  Ky.  651 ;  9  S.  W.  382. 
Ames  v.  Winsor,  19  Pick.  207. 
Allen  v.  Lee,  6  Wis.  478. 
Standley  v.  Arrow,  13  Fla.  361. 
Campbell  v.  Swasey,  12  Ind.  70. 

30.  Redmond  v.   Peterson,   102   Cal.   599 ;    36   Pac.   923 ;   41  A.   S.   R. 

206. 

Hopper  v.  Fisher,  2  Head  253   (Tenn.). 
See,  also:     Childs  v.  Lauterman,  103  Cal.  387;   37' Pac.   382;  42 

A.  S.  R.  121,  where  it  is  said  that  an  appearance  for  an  Infant 

may  be  by  an  attorney. 
81.     Bonnell  v.  Holt,   89  111.   71. 

Carver  v.  Carver,  64  Ind.  194. 
Sullivan  v.   Blackwell,   28  Miss.   737. 
Helms  v.  Colbourne,  45  Wis.  60. 
Whlteside  v.  Barber,  24  S.  Car.  37S. 
Hawes  on  Jurisdiction,  Sec.   231. 
Ingersoll  v.  Mangam,  84  N.  T.  622. 


366  THE  LAW  OF  WAIVER. 

(2)  EXEMPTION  FEOM  SERVICE :— Sec. 
366.  The  law  exempts  certain  persons  from  the 
service  of  civil  process,  and  renders  voidable  any 
attempted  service  in  contravention  of  such  exemp- 
tion. In  this  discussion  it  is  not  our  purpose  to  show 
what  persons  are  entitled  to  this  privilege,  nor  the 
time,  place  nor  proceedings  to  which  the  exemption 
extends.  But  the  privilege  is  a  personal  one  and 
may  be  waived  by  him  who  is  entitled  to  assert  it, 
and  courts  are  not  bound  to  judicially  notice  the 
right  or  privilege  nor  to  grant  it  without  a  claim32. 
The  service  is  an  irregularity  of  which  the  defend- 
ant must  avail  himself  promptly,  and  if  he  permit 
judgment  to  be  rendered  against  him  during  the 
existence  of  his  privilege,  and  fail  to  seek  during 
the  progress  of  the  proceedings  to  either  abate  or 
suspend  them,  he  thereby  waives  his  right  of  exemp- 
tion and  the  judgment  against  him  is  valid33.  As 
the  privilege  must  be  claimed  by  plea  or  motion 
made  in  the  particular  case  at  the  proper  time34,  it 
follows  that  after  entering  a  general  appearance  in 
the  case  it  is  then  too  late  to  object  to  service,  for 
such  objection  is  thereby  waived,  even  though  the 
exemption  be  claimed  in  the  answer35.  But  the 
facts  giving  a  right  of  exemption  may  be  set  forth 
in  the  answer  in  the  nature  of  a  plea  to  the  juris- 
diction, and  the  want  of  valid  service  is  not  thereby 


32.     Geyer's  Lessee  v.  Irwin,  4  Dall.  107. 

tt.      Thornton   v.    American    Co.,    83    Ga.    288;    9   S.    E.    679;    20    A.    8.    R. 
320. 

Prentls  i>.  Commonwealth,  5  Rand.  697 ;  16  A.  D.  782. 
14.     Larned  v.  Griffin,   12  Fed.  590. 

Peters  v.  League,   13  Md.   58;   71  A.  D.   622. 

King  v.  Phillips,  70  Ga.  409. 

Palmer  v.  Rowan,  21  Neb.   452;  32  N.  W.  210;  69  A,  8.  R.   844. 
N.     Williams  v.  McGrade,  13  Minn.  174. 

Gracie  v.   Palmer,    8  Wheat.   699. 


PLEADING.  367 

waived36.  'And  it  has  been  held  that  an  answer  to 
the  merits,  joined  with  a  plea  to  the  jurisdiction, 
does  not  amount  to  a  waiver  of  the  privilege37.  The 
matter  has  been  well  stated  thus :  ' '  The  courts  may 
not  ex  officio  take  notice  of  the  existence  of  the  priv- 
ilege. It  results  from  its  nature  and  character  that 
it  may  be  waived,  and,  therefore,  ought  to  be 
claimed  whenever  relied  on.  The  judicial  history  of 
the  question  does  not  furnish  an  example  of  the  al- 
lowance of  the  privilege  but  upon  plea  or  upon  mo- 
tion tendered  or  made  at  the  period  proper  for  the 
consideration  by  the  court  whose  proceedings  are 
sought  to  be  abated  or  suspended.  The  proof  of  the 
facts  upon  which  it  rests  are  easy  of  attainment, 
because  they  are  few,  and  may  be  adduced  as  well 
in  the  absence  as  in  the  presence  of  the  party"38. 

B.    JURISDICTION- 

(1)  SUBJECT-MATTER:— Sec.  367.  In  the 
foregoing  discussion  we  have  confined  ourselves  to 
the  consideration  of  those  matters,  chiefly  relating 
to  process,  which  bear  upon  the  exercise  by  the 
courts  of  jurisdiction  over  the  persons  of  defend- 
ants. Though  perhaps  not  dealt  with  by  as  great 
a  number  of  cases,  the  question  of  the  jurisdiction 
of  courts  over  the  subject-matter  of  an  action  is 
equally  important.  And  doubtless  the  reason  that 
the  question  has  not  arisen  so  frequently  is  because 
the  principles  involved  have  been  from  the  first  so 
clearly  outlined  and  so  consistently  followed  that 
no  diversity  of  opinion  has  been  manifested  insofar 
as  the  matter  is  affected  by  the  subject  of  our  trea- 

36.  Byler  v.  Jones,  79  Mo.  261. 

37.  Christian  v.  Williams,  35  Mo.  App.  298 ;  111  Mo.  429  ;   20  S.  W. 

96. 
31.     Prentte  v.  Commonwealth,  5  Rand.  697 ;  16  A.  D.  782. 


368  THE  LAW  OF  WAIVER. 

tise.  For,  unlike  other  legal  rights  accruing  to  a 
party,  a  defendant  has  the  right  to  require  the  plain- 
tiff to  bring  his  action  in  a  court  having  cognizance 
of  the  subject-matter  of  the  action  as  established  by 
legal  principles,  which  right  he  cannot  waive.  Its 
benefit  he  must  accept  whether  he  will  or  not.  He 
cannot  consent  so  as  to  give  to  a  court,  not  already 
possessing  it  by  law,  the  right  to  adjudicate  any 
cause,  and  it  is  an  inflexible  rule  that  any  judg- 
ment rendered  by  a  court  outside  the  vale  of  its 
jurisdiction  is  null  and  void,  incapable  of  ratifica- 
tion and  subject  to  collateral  impeachment39.  And 
the  rule  has  been  succinctly  stated  thus:  Where 
the  judicial  tribunal  has  not  general  jurisdiction  of 
the  subject-matter  under  any  circumstances,  no 
averment  can  supply  the  defect,  no  amount  of  proof 
can  alter  the  case,  no  consent  can  confer  jurisdic- 
tion40. The  power  of  the  court  may  be  conferred 
in  a  number  of  ways,  but  however  conferred,  the 
rule  is  the  same.  And  if  a  defendant  cannot  con- 

39.  Webb.  v.  Carr,  78  Ind.  455. 
Eaton  v.  Badger,  33  N.  H.  228. 
Lyles  v.  Bolles,  8  S.  Car.  258. 
Wamsley  v.  Robinson,   28  La.  Ann.  793. 
Peabody  v.  Thatcher,  3  Colo.  275. 
Dicks  v.  Hatch,  10  la.  280. 

San  torn  v.  Ballard,  133  Mass.  465. 
Fleischman  v.  Walker,  91  111.  318. 
Moore  v.  Ellis,  18  Mich.  77. 
Damp  v.  Dane,   29  Wls.   419. 

40.  Bum/stead  v.  Read,  31  Barb.  669. 
Cooper  v.  Reynolds,  10  Wall.  308. 
Mex.  Ry.  v.  Davidson,   157  U.  S.  201. 

Watts  v.  Boom,  etc.,  47  Mich.  540 ;  11  N.  W.  877. 

Gilliland  v.  Sellers,  2  Oh.  St.  223. 

To  the  same  effect,  see :  Doctor  v.  Hartman,  74  Ind.  221. 

Jacks  v.  Moore,  33  Ark.  31. 

Schuylkill  Co.  v.  Boyer,   125  Pa.  St.  226;   17  Atl.  33J. 

Fields  v.  Walker,  23  Ala.  155. 

Moore  v.  O'Barr,  87  Ga.  205 ;  13  S.  B.  464. 

Payne  v.  Bank,  29  Conn.  415. 

Piano  Co.  v.  Rasey,  69  Wis.  246;  34  N.  W.  85. 

Smith  v.  Myers,  109  Ind.  1 ;  9  N.  E.  692. 


PLEADING.  369 

sent  that  a  court  shall  assume  jurisdiction  to  deter- 
mine a  cause,  he  can  no  more,  by  any  conduct  of  his, 
waive  the  question  of  non-jurisdiction;  and  any  an- 
swer, demurrer  or  general  appearance  of  his  is  in- 
effectual to  constitute  such  waiver. 

Sec.  368.  Jurisdiction,  however,  may  be  limited 
by  statute  or  the  constitution  insofar  as  it  affects 
certain  persons ;  and  in  such  cases  it  is  held  that  the 
dei'endant,  when  sued,  may  waive  his  exemption 
and  confer  jurisdiction41.  Thus,  it  has  been  held 
that  a  judgment  against  a  Consul  of  a  foreign  na- 
tion upon  default  is  valid ;  it  being  said  that  his  not 
appearing  and  pleading  to  the  jurisdiction  of  the 
court  is  a  waiver  of  the  want  of  jurisdiction  over 
him42.  However,  the  court  said  that  when  sued, 
the  Consul,  if  he  would  avail  himself  of  his  privi- 
lege, must  make  it  appear  that  he  is  a  Consul,  un- 
less the  other  party  shows  it  as  by  naming  him  as 
a  Consul. 

Sec.  369.  It  being  the  rule  that  parties  cannot 
by  their  consent  give  to  courts  jurisdiction  over 
subjects  which  the  law  says  they  shall  not  take  cog- 
nizance of,  it  is  equally  true  that  when  the  jurisdic- 
tion of  courts  once  attaches  to  a  subject,  the  parties 
cannot  by  their  agreement  divest  the  courts  of  their 
jurisdiction.  This  question  has  arisen  more  fre- 
quently in  actions  on  policies  of  insurance  than  in 
any  other,  a  provision  usually  being  inserted  in  the 
policies  that  the  amount  of  a  loss  or  other  differ- 
ences between  the  insurer  and  the  insured  shall  be 
referred  to  a  board  of  arbitrators  before  suit  on  the 
policy  shall  be  commenced.  But  this  clause,  even 

41.  Bates  v.  Gage,  40  Cal.  183. 

42.  Hall  v.  Young,  3  Pick.  80;  15  A.  D.  180. 
Springfield  Co.  v.  West,  1  Gush.  389. 


370  THE  LAW  OF  WAIVER. 

though  assented  to  by  both  parties,  cannot  ous!  the 
courts  of  their  jurisdiction43.  But  while  such  agree- 
ments which  attempt  to  oust  the  courts  of  their 
jurisdiction  will  not  be  supported  either  at  law  or 
in  equity,  it  is  said  that  those  which  do  not  go  to  the 
root  of  the  action,  but  are  only  preliminary  thereto 
or  in  aid  thereof,  such  as  settling  the  amount  of 
damage  or  the  time  of  paying  it,  or  the  like,  will 
be  sustained44.  So,  where  parties  stipulated  not  to 
appeal,  the  stipulation  was  ignored,  the  court  say- 
ing that  the  parties  cannot  by  their  agreement  di- 
vest courts  of  law  or  equity  of  their  proper  juris- 
diction45. 

2.    DEFECTS  IN  COMPLAINT— 

A.  IN  GENERAL:— Sec.  370.  Defects  in  a 
complaint,  both  in  substance  and  in  form,  are  mat- 
ters of  which  the  courts  do  not  take  notice,  and  to 
be  of  any  avail  to  a  defendant,  must  be  relied  upon 
by  him  by  a  proper  objection;  and  it  is  a  general 
rule  that  if  a  cause  be  tried  without  objection  to  the 
complaint  by  demurrer,  either  general  or  special,  as 
the  particular  case  may  require,  the  defects  will  be 
waived  if  they  do  not  affect  the  substantial  rights 
of  the  parties.  By  such  failure  to  object,  the  de- 
fendant admits  that  the  complaint  is  sufficient.  Or, 
otherwise  stated,  all  technical  or  formal  objections 
to  a  complaint  must  be  raised  by  motion  or  de- 

41.     May  on  Insurance,  Sec.  492. 

And   see:    Chapter    12,    this   volume;    sub-division    "Arbitration." 

2   Story's  Eq.   Jur.   1457. 

Hill  v.  Moore,   40   Me.   515. 
44.     Wood  v.  Humphrey,  114  Mass.  186. 

Pearl  v.  Harris,  121  Mass.  390. 

Ins.   Co.  v.   Morse,   20  Wall.   445. 

Liverpool  Co.  v.  Creighton,  51  Ga.  95. 

Mentz  v.  Ins.  Co.,  79  Pa.  St.  478. 
44.     Muldrow  v.  Norris,   2  Cal.   74;   56  A.  D.  313. 

Allegre  v.  Ins.  Co.,  6  Harr.  &  J.  408   (Md.)  ;  14  A.  D.  28-9. 


PLEADING.  371 

murrer  before  trial,  and  if  not  so  raised,  they  will 
be  held  waived.  A  practice  which  would  permit 
such  objections  to  be  made  at  the  trial  might  be  the 
means  of  causing  needless  expense  to  litigants  as 
well  as  subjecting  the  court,  witnesses  and  jurors  to 
unnecessary  annoyance,  a  practice  not  to  be  encour- 
aged since  cases  in  court  are  to  be  conducted  with 
the  least  possible  expense  to  litigants  and  annoy- 
ance to  the  court  consistent  with  the  proper  admin- 
istration of  justice46.  And,  applying  this  rule,  un- 
less the  demurrer  or  objection  be  made  in  the  trial 
court,  it  cannot  be  raised  on  appeal47,  for  joining 
issue  upon  a  defective  statement  is  a  waiver  there- 
of48. And  where  a  demurrer  is  proper,  it  must  be 
pertinent,  for  when  a  special  demurrer  is  required, 
the  filing  of  a  general  one  is  a  waiver  of  the  objec- 
tion which  the  special  one  would  have  reached49. 
And  if  a  complaint  fail  to  state  a  cause  of  action,  a 
demurrer  thereto,  if  interposed,  will  be  sustained, 
but  if  the  defendant  fail  to  demur,  and  file  an  an- 
swer in  which  are  stated  facts  which  supply  the 
omission  of  the  complaint,  the  objection,  which 
might  have  been  taken  advantage  of  by  demurrer, 
is  thereby  waived  and  the  defect  cured50.  And  the 
same  result  follows  where  evidence  is  introduced 
without  objection  in  support  of  the  defective  state- 


46.  Orman    v.    Mannlx,    17    Colo.    564;    30    Pac.    1037;    31    A.    S.    R.    340. 
Dennison  v.  Chapman,  105  Gal.   447 ;  39  Pac.  61. 

47.  Seligman  v.  Armando.  94  Cal.  314 ;   29  Pac.  710. 

48.  Davis  v.  WaJt.  12  Oreg.  425 ;  8  Pac.  356. 

49.  Daggett  v.  Gray,  110  Cal.  169;  42  Pac.  568. 

50.  Robinson  Co.  v.  Johnson,  13  Colo.  258;   22  Pac.  459;  5  L.  R.  A. 

769. 

Hamilton  v.  Ry.  Co.,   17  Mont.  334;   42  Pac.  860;   43  Pac.  713. 
Shlvely  v.  Semi-Tropic  Co.,  99  Cal.  259 ;  33  Pac.  848. 
Ferera  v.  Parke,   19  Ores.  141 ;   23   Pac.   883. 


372  THE  LAW  OF  WAIVER. 

ment51,  or  if  the  omission  be  supplied  in  an  answer 
to  a  cross-complaint52. 

Sec.  371.  But  it  is  not  a  waiver  of  an  objection 
that  might  have  been  raised  by  demurrer  to  demand 
a  bill  of  particulars53.  Nor  can  the  ground  of  a 
general  demurrer  be  waived  by  a  failure  to  demur, 
nor,  according  to  some  courts,  by  a  consent  that  the 
demurrer  be  overruled,  although  this  latter  holding 
occurs  to  be  somewhat  of  an  anomaly,  since  the  con- 
sent that  a  demurrer  may  be  overruled  may  be  an 
acknowledgment  that  it  is  not  well  founded  and  may 
be  construed  as  evidencing  an  intention  to  abandon 
the  demurrer.  The  submission  of  a  demurrer  with- 
out argument,  however,  is  not  such  a  waiver54.  And 
it  is  said  that  the  objection  that  a  complaint  or  peti- 
tition  does  not  state  facts  sufficient  to  constitute  a 
cause  of  action  cannot  be  waived55.  But  if  a  de- 
fendant pleads  to  the  merits,  he  waives  mere  formal 
defects,  and  cannot  object  that  the  petition  does  not 
state  a  cause  of  action ;  such  objection  can  be  inter- 
posed only  when  the  complaint  fails  altogether  to 
state  a  cause  of  action,  and  not  when  it  is  defective- 
ly stated57. 

Sec.  372.  Where  a  demurrer  is  filed,  it  must 
be  presented  to  the  court  either  by  argument  or  by 


51.  Reynolds  v.  Dickson.  48  Wash.  407 ;   93  Pac.  910. 

52.  Cohen  v.  Knox.  90  Gal.  266;  27  Pac.  215;  13  L.  R.  A.  711. 

53.  Mulvey  v.  Staab,  4  N.  Mex.  50 ;  12  Pac.  699. 

54.  Richard  v.  Ins.  Co..  80  Cal.  505;  22  Pac.  939. 

55.  Marks,  etc.  Co.  v.  Watson,  168  Mo.  133 ;  67  N.  W.  391 ;  90 

A.  S.  R.  440. 

56.  Shreffler  v.  Nadelhoffer,  133  111.  536;  25  N.  E.  630;  23  A.  S.  R. 

626. 
67.     Johnson  v.  Ry.  Co..  96  Mo.  340 ;  9  A.  S.  R.  351. 


PLEADING.  373 

an  express  submission  without  argument58.  For  if 
the  defendant  file  a  demurrer,  yet  enter  upon  and 
proceed  with  the  trial  upon  the  merits  without  call- 
ing the  court's  attention  to  the  demurrer  or  de- 
manding a  ruling  upon  it,  he  thereby  waives  the  ob- 
jection59. So,  if  he  demurs,  and  afterwards  an- 
swers, but  withdraws  his  answer  before  trial  and 
allows  a  judgment  to  be  entered,  he  is  presumed 
to  have  waived  the  demurrer60. 

B.  BY  ANSWERING:— Sec.  373.  Whether 
filing  an  answer  after  the  overruling  of  a  demurrer 
is  a  waiver  of  the  right  to  object  to  the  complaint 
may  depend  upon  statutory  provision,  and  when 
such  provision  is  made  it  must  control.  But  it  is 
held  that  if  a  party  plead  over  after  demurrer  over- 
ruled, the  demurrer  is  thereby  waived  and  the  rul- 
ing thereon  cannot  be  assigned  as  error61,  for  it 
was  said  that  it  is  not  permissible  to  plead  and  de- 
mur at  the  same  time62.  And  if  the  demurrer  is 
based  on  several  grounds,  among  which  is  that  the 
complaint  fails  to  state  facts  sufficient  to  constitute 

58.  The  same  principles  governing  demurrers  to  complaints  are  appli- 
cable when  the  objection  is  to  an  answer  or  reply ;  so,  the  failure 
of  plaintiff  to  demur  waives  objection  to  the  answer ;  see : 
Ritchie  v.  DaVls,  5  Cal.  453. 

Macdougal  v.  Maguire,  35  Cal.  274  ;   95  A.  D.  98. 

U.  S.  v.  Boyd.  5  How.  29. 

Silcox  v.  Lang.  78  Cal.  118  ;   20  Pac.  297. 

59.  Wright  v.  Sherman,  3  S.  Dak.  290  ;   52  N.  W.  1093  ;  17  A.  S.  R. 

792. 

Spanish  City  v.  Hopper,  7  Utah  235  ;  26  Pac.  293. 
Olds  v.  Gary,   13   Oreg.   362;   10  Pac.   786. 
Guthrie  v.  Phelan.  2  Idaho  95 ;  6  Pac.  107. 
Danielson  v.  Gude,  11  Colo.  87  ;  17  Pac.  283. 
Francisco  v.  Benepe,  6  Mont.  243 ;  11  Pac.  637. 
Mayor  v.  Houston  Ry.  Co.,  83  Tex.  548;  19  S.  W.  127;  29  A.  S. 

R.  679. 

60.  Evans  v.  Jones,  10  Utah  182 ;  37  Pac.  262. 

61.  Ambler  v.  Whipple,  139  111.  311;  28  N.  E.  841 ;  32  A.  S.  R.  202. 
Cooke  v.  England.  27  Md.  14;  92  A.  D.  618. 

62.  People  v.  Telephone  Co.,  192  111.  307;  61  N.  E.  428;  85  A.  S.  R. 

33S. 


374  THE  LAW  OF  WAIVER. 

a  cause  of  action,  all  grounds  except  this  are  waived 
if  the  defendant  answer  after  the  overruling  of  the 
demurrer63.  But  if  the  court  grant  leave  to  file  an 
answer  after  the  overruling  of  a  demurrer,  it  is  said 
that  the  latter  is  not  waived  by  the  filing  of  such  an- 
swer64; and  an  application  for  such  leave  is  ad- 
dressed to  the  discretion  of  the  court  below65,  and 
unless  grossly  abused  will  not  be  disturbed60. 
Without  such  leave,  however,  the  filing  of  the  an- 
swer is  a  waiver  of  irregularities67,  or  defects  set 
up  by  the  demurrer,  and  even  of  the  demurrer  itself 
or  the  right  to  rely  upon  it68.  The  waiver,  though, 
extends  only  to  the  objections  to  the  ruling  of  the 
court  with  reference  to  the  form  of  the  pleading69, 
for  if  the  complaint  fail  to  state  facts  sufficient  to 
constitute  a  cause  of  action  the  objection  may  be 
taken  advantage  of  even  after  all  the  evidence  is  in. 

Sec.  374.  While  there  are  many  decisions  sup- 
porting the  rules  announced  in  the  preceding  sec- 
tion— and  a  majority  of  them  do — 70,  we  cannot 
but  agree  with  the  fewer  cases  supporting  a  con- 
trary doctrine.  There  is  no  inherent  justice  in  hold- 

63.  Thalhelmer  v.  Crow.  13  Oolo.  397 ;  22  Pac.  779. 

64.  Ourtiss  v.  Bachman.  84  Cal.  216 ;  24  Pac.  379. 

65.  Powell  v.  Ry.  Co.,  14  Oreg.  22 ;  12  Pac.  83. 

66.  Corson  v.  Neatheny,  9  Colo.  212 ;  11  Pac.  82. 

67.  Bell  v.  Ry.  Co..  4  Wall.  598 ;  18  L.  Ed.  338. 

68.  Irwin  v.  Henderson.  2  Cranch  C.  C.  167 ;  Fed*  Cas.  No.  7084. 
Madden  v.  Occidental  Co..  86  Cal.  445;  25  Pac.  5. 

Earth  v.  Denel,  11  Colo.  494;  19  Pac.  471. 
Young  v.  Martin,   8  Utah,   484;   24   Pac.   909. 
Loukey  v.  Wells.  16  Nev.   271. 

69.  Anderson  v.  No.  Pac.  Lbr.  Co..  21  Oreg.  281 ;  28  Pac.  6. 

70.  Lynch  v.  Bechtel,  19  Mont.  548;   48  Pac.  1112. 
Flnney  v.  Randolph,  68  Mo.  App.  557. 
Elliott  v.  Field.  21  Colo.  378;  41  Pac.  504. 
Geiser  Co.  v.  Krogman,  111  la.  503;  82  N.  W.  938. 
Baker  v.  Fawcett,  69  111.  App.  300. 

BerthoJdt  v.  O'Hara.   121  Mo.  88;   25  S.  W.   845. 
Car  Co.  v.  League,  25  Colo.  129;   54  Pac.   642. 
Hammersmith  v.  Avery.  18  Nev.  225 ;  2  Pac.  55. 


PLEADING.  375 

ing  a  party  to  have  waived  error  by  pleading  over 
after  a  demurrer  interposed  by  him  has  been  over- 
ruled. If  the  objection  be  to  merely  formal  defects, 
no  real  harm  could  come  to  a  party  by  holding  him 
strictly  to  his  election,  but  as  to  those  matters  af- 
fecting his  substantial  rights,  just  reasoning  de- 
mands that  he  be  not  required  to  place  an  estimate 
of  infallibility  upon  his  judgment;  and  under  the 
strict  rule  above  announced,  a  party  demurring  may 
with  just  reason  hesitate  to  rest  upon  his  over- 
ruled demurrer  lest  an  error  of  judgment  on  his 
part  imperil  his  case  and  shut  him  out  of  a  meri- 
torious defense.  But  under  the  rule,  he  must  so 
wager  his  rights  against  his  judgment  and  if  he 
lose,  be  forever  precluded  from  any  defense  at  all71. 
Every  lawyer  who  has  had  experience  at  the  bar 
can  recall  with  what  trepidation  he  has  staked  the 
interests  of  his  client  on  his  own  judgment  that 
error  has  been  committed  by  the  trial  court  in  the 
overruling  of  a  demurrer;  or  with  what  regret  and 
feeling  of  injustice  he  has  been  compelled  to  file  an 
answer,  fearing  to  stake  so  much  on  his  judgment, 
yet  feeling  certain  that  error  has  been  committed. 
And  to  know  that  a  rule  permitting  an  exception  to 
the  overruling  of  the  demurrer,  and  a  subsequent 
answer  without  waiving  the  exception  would  preju- 
dice neither  party  is  stronger  persuasion  in  favor  of 
the  rule. 

C.    MIS-JOINDER— 

(1)  OF  PARTIES:— Sec.  375.  Defect  or 
mis- joinder  of  parties  appearing  on  the  face  of  a 
complaint  is  ground  for  demurrer,  and  when  not  ap- 

71.     Hurley  v.  Ryan,  119  Cal.  71;  51  Pac.  20. 
Pence  v.  Durbln,  1  Idaho,  550. 
Seaboard  Co.  v.  Woodson,  94  Ala.  143;  10  So.  87. 


376  THE  LAW  OP  WAIVER. 

pearing  on  the  face  of  the  complaint,  objection 
thereto  may  be  taken  by  answer.  If  no  such  objec- 
tion be  taken,  either  by  answer  or  demurrer,  it  is 
waived72.  Therefore,  defect  of  parties  defendant 
cannot  be  questioned  for  the  first  time  in  the  appel- 
late court  when  it  appears  that  the  persons  who 
ought  to  have  been  made  defendants  are  not  indis- 
pensable parties 'and  that  a  decree  can  be  entered 
between  the  parties  to  the  action  without  them78. 
But  the  rule  is  not  applicable  if  the  omitted  party 
be  indispensable  to  a  complete  determination  of  the 
action74.  Nor  will  the  filing  of  an  answer  after  the 
overruling  of  a  demurrer  for  such  cause  be  a  waiver 
of  the  defect75.  And  it  is  said  that  a  general  de- 
murrer admits  the  sufficiency  of  the  parties,  but  the 
defect  may  afterwards  be  raised  by  answer76,  but 
that  it  cannot  be  raised  by  an  objection  to  the  intro- 
duction of  evidence77. 

(2)  OF  CAUSES  OF  ACTION :— Sec.  376. 
The  codes  usually  make  mis- joinder  of  causes  of 
action  a  ground  of  demurrer.  But  whatever  the 
mode  prescribed  to  be  taken,  the  objection  must  be 
made  in  the  trial  court  or  it  will  be  deemed  to  have 


72.  Mather  v.  Dunn,  11  S.  Dak.  196  ;  76  N.  W.  922  ;   74  A.  S.  R.  788. 
Summers   v.   Heard,    66   Ark.    550;    50   S.   W.    78;    51   S.    W.    1057. 
Swartzel  v.  Karnes,  2  Kans.  App.  782 ;  44  Pac.  41. 

Franke  v.   St.    Louis,    110   Mo.    516;    19    S.   W.    938. 
Stephens  v.  Harding,  48  Neb.  659 ;  67  N.  W.  746. 
Passumpsic  Bank  v.  Buck.  71  Vt  190  ;   44  Atl.   93. 

73.  Great  West.  Co.  v.  Woodmas  Co.,  12  Colo.  46;  20  Pac.  771;   13 

A.   S.  R.  204. 

Conklin  v.  Barton,  43  Barb.  435. 
Seeding  v.  Bartlett.  35  Mo.  90. 

74.  Peck  v.  Peck,  33  Colo.  421;  80  Pac.  1063. 

75.  Town  v.  Long,  144  Cal.  362  :  77  Pac.  987. 

76.  Johnson   v.   Bott,    18   Colo.   App.    469;    72   Pac.    612. 

Qrisson  v.  Hofius.  39  Wash.  51 ;  80  Pac.  1002. 

77.  Dickerson  v.   Spokane,  26  Wash.  292;   66  Pac.  381. 


PLEADING.  377 

been  waived78.  The  objection  must  be  taken  by  a 
special  demurrer,  for  a  general  demurrer  is  a 
waiver  of  the  objection79,  and  the  same  result  fol- 
lows from  pleading  over80.  Some  statutes,  how- 
ever, provide  that  a  demurrer  and  answer  may  be 
filed  together,  in  which  event  the  demurrer  is  not 
waived  by  the  answer81. 

D.     INCAPACITY     OF    PLAINTIFF :— Sec. 

377.  The  states  which  have  adopted  the  code  sys- 
tem make  the  objection  that  plaintiff  has  not  legal 
capacity  to  sue  a  ground  of  special  demurrer  if  the 
defect  appears  on  the  face  of  the  complaint  or  peti- 
tion, and  if  it  does  not  so  appear  the  defect  must  be 
set  up  and  relied  upon  in  the  answer.  And  the 
failure  to  so  take  advantage  of  it  prior  to  the  trial 
is  a  waiver  of  it 82.  A  general  demurrer  is  not  suf- 
ficient to  reach  the  objection,  for  the  facts  showing 
the  capacity  of  the  plaintiff  to  sue  are  not  facts  con- 
stituting the  cause  of  action83.  Thus,  if  plaintiff 
be  a  foreign  executor  and,  therefore,  not  qualified 
to  sue,  the  objection  must  be  made  by  demurrer  if 

78.  Maisenbacker  v.   Society,   71  Conn.   369;   42  Atl.   67;   71  A    S.  R. 

213. 

McKune  v.  Mill  Co.,  110  Cal.  480  ;  42  Pac.  980. 
Porter  v.  Banking  Co.,  36  Neb.  271;  54  N.  W.  424. 
Jones  v.   Hughes,   16  Wis.   683. 

Henney  Co.  v.  Higham,  7  N.  Dak.  45;   72  N.  W.  911. 
Barlow  v.  Leavitt.  12  Gush.  483. 
Corbett  v.  Wrenn,  25  Oreg.  305  ;  35  Pac.  658. 
Youngs  v.  Leely,  12  How.  Pr.  395. 
White  v.  Delschneider,   1  Oreg.  254. 
Fuhn  v.  Weber.   38  Cal.   636. 

79.  Ruhling  v.  Hackett,   1  Nev.   360. 

Daggett  v.  Gray,  110  Cal.  169;  42  Pac.  568. 

80.  Shoelkoff  v.  Leonard,  8  Colo.  159;  6  Pac.  209. 

81.  State   t?.    Edwards,    33   Utah,    243;    93    Pac.    720. 

82.  Meyer  v.  Earth,  97  Wis.  352  ;  72  N.  W.  748  ;  65  A.  S.  R.  1J4. 
Palmer  v.  Davis,  28  N.  Y.  242. 

Miller  v.  Luco,  80  Cal.  257 ;  22  Pac.  195. 

83.  Bank  v.   Edwards,   11   How.   Pr.   216. 
Myers  v.  Machado,  6  Abb.  Pr.  198. 


378  THE  LAW  OF  WAIVER. 

the  complaint  disclose  the  incapacity,  or  by  answer 
if  it  do  not,  for  otherwise,  objection  at  the  trial 
would  be  overruled 84. 

E.  WAIVEE  OF  ERROR  IN  OVERRULING 
DEMURRER :— Sec.  378.    Where  a  demurrer  is  filed 
to  a  pleading  and  is  sustained  by  the  court,  any  er- 
ror in  the  order  sustaining  the  demurrer  is  waived 
by  filing  an  amended  pleading  covering  the  points 
raised  by  the  demurrer85,  and  the  same  is  true  if  the 
pleading  is  an  amendment  of  an  amendment86 ;  and 
even  in  a  case  where  the  court  refused  to  permit  the 
amended  pleading  to  be  filed,  the  offer  to  file  it  was 
held  a  waiver87. 

F.  OBJECTIONS    TO   VENUE:— Sec.   379. 
The  county  in  which  an  action  shall  be  tried  may  be 
agreed  upon  by  the  parties.     Or  if  the  county  in 
which  the  action  is  brought  is  not  the  proper  one 
for  the  trial  thereof,  the  action  may  nevertheless  be 
tried  therein  unless  the  defendant  by  proper  objec- 
tion demand  that  it  be  tried  in  the  county  prescribed 
by  law.    But  the  objection  must  be  raised  prior  to 
trial  or  it  will  be  deemed  waived.    And  any  conduct 
on  the  part  of  the  defendant  manifesting  satisfaction 
with  the  venue  until  after  the  trial,  or  his  abiding 

84.  Robbing  v.  Wells,  26  How.  Pr.  15. 

And  see:  Connor's  Adm.  v.  Paul,  12  Bush  144. 

Duncan  v.  Whedbee,  4  Colo.   143. 

Mullin's  Appeal,  40  Wls.  1E4. 

Wright  v.  Wright,   72   Ind.   149. 

S.  W.  Ry.  Co.  v.  Paulk,  24  Ga,  370. 

Rucks  v.  Taylor,  49  Miss.  560. 

Palmer  v.  Ins.  Co.,  84  N.  Y.  67. 

Gregory  v.  McCormick,  120  Mo.  657;  25  S.  W.  565. 

85.  Gowan  v.  Gilson,  142  Ind.  328;  41  N.  E.  594. 
Scheiber  v.  Tel.  Co.,  153  Ind.  609 ;  55  N.  E.  742. 
Louisville  R.  Co.  v.  House,  104  Tenn.  110;  56  S.  W.  838. 
Roderick  v.  Ry.  Co.,  7  W.  Va.  54. 

86.  Brown  v.  Case  Plow  Works,  9  Kans.  App.  685 ;  59  Pac.  SOI. 

87.  Anthony  v.  Slayden.  27  Colo.  144 ;  60  Pac.  826. 


PLEADING.  379 

by  it  until  the  matter  has  proceeded  to  a  hearing 
will  be  sufficient  to  constitute  a  waiver. 

Sec.  380.  The  venue  of  an  action  has  always 
been  a  privilege  which  the  defendant  could  exact  or 
waive,  even  as  to  districts.  The  right  of  a  defendant 
to  be  sued  in  that  of  his  domicile  may  be  waived, 
and  is  waived  by  his  failure  to  object88.  If  to  be 
sued  in  the  district  of  one 's  domicile  is  in  the  nature 
of  a  personal  exemption  or  privilege  which  may  be 
waived,  surely  to  be  sued  in  a  certain  division  of 
that  district  is  of  a  like  nature  and  may  be  waived. 
Under  the  act  of  Congress  of  February  18,  187589, 
which  exempted  national  banks  from  suits  in  state 
courts  in  counties  other  than  the  county  in  which  the 
bank  was  located,  it  was  held  that  such  exemption 
was  a  personal  privilege  which  could  be  waived  and 
was  waived  by  appearing  in  a  suit  brought  in  another 
county  and  not  claiming  the  immunity  thus  granted90. 
Thus,  where  on  motion  of  the  defendant  the  action 
was  transferred  to  and  tried  in  the  judicial  division 
of  its  residence,  the  objection  to  the  venue  of  the 
action  which  might  have  been  raised  was  waived  by 
such  procedure91.  And  a  stipulation  for  the  removal 
of  a  cause  to  another  county  waives  an  objection  that 
it  was  not  brought  in  the  proper  county92,  as  does 


88.  Central  Trust  Co.  v.  McGeorge,  151  U.  S.  129;  38  L.  Ed.  98. 

89.  18  Stat.  At.  L.  316,  Chap.  80. 

90.  First  National  Bank  v.  Morgan.  132  U.  S.  141;  32  L.  Ed.   282. 

91.  Nelson  v.  Willamette,   70  Fed.  374;  31  L.  R.  A.  715,  citing: 
Barry  v.  Foyles,  26  U.  S.  1 ;  1  Pet.  314 ;  7  L.  Ed.  158. 
Pollard  v.  Dwlght,  4  Cranch  421 ;  2  L.  Ed.  666. 
Harkness  v.  Hyde,  98  U.  S.  476 ;  25  L.  Ed.  237. 

St.  Louis  Ry.  Co.  v.  McBryde,  141  U.  S.  127 ;  35  L.  Ed.  659. 
Eddy  v.  Lafayette,  49  Fed.  807  ;  4  U.  S.  App.  247. 

92.  Gay  v.  Brlerfield  Co..  94  Ala.  303;   11   So.  353;   33  A.  S.  R.  1*2: 

16  L.  R.  A.  564. 


380  THE  LAW  OF  WAIVES. 

also  the  appearance  of  the  defendant  and  filing  an 
answer  in  the  cause93. 

Sec.  381.  Where  there  has  been  a  change  of 
venue  granted,  any  objections  to  such  change  are 
waived  by  a  general  appearance  filed  in  the  court 
to  which  the  cause  is  sent94.  This  is  especially  true 
if  the  parties  proceed  to  trial95,  or  file  pleas  in  the 
cause96;  or  even  if  a  motion  for  a  continuance  be 
filed,  the  mover  thereby  waives  the  right  to  object97. 

3.     IN    ATTACHMENTS    AND    GARNISH- 
MENTS : 

A.  DEFECTS  IN  AFFIDAVIT :— Sec.  382. 
Where  defects  exist  in  an  affidavit  filed  as  a  basis 
for  an  attachment,  they  are  fatal  to  the  proceeding 
if  taken  advantage  of  at  the  proper  time  and  in  the 
proper  manner.  But  they  must  be  so  taken  advan- 
tage of  as  they  are  not  matters  which  courts  will 
judicially  notice  unless  they  are  called  to  their  atten- 
tion by  proper  objections  by  the  party  affected  by 
them.  Thus,  where  the  averments  of  the  affidavit 
are  traversed  in  the  regular  manner  by  the  defend- 
ant, and  the  matter  proceeds  to  trial  upon  such 
traverse  without  any  objection  to  the  sufficiency  of 
the  affidavit,  and  the  issues  are  found  against  the 


93.  Granville,  etc.  v.  State  Board,  106  N.  Car.  81;  10  S.  E.  1002. 
Bishop  v.  Silver  Lake  Co..   62  N.  H.  455. 

Ohio  Ry.  Co.  v.  Morey.  47  Oh.  St.  207;  24  N.  E.  269;  7  L.  R.  A. 

701. 

Sheenan  Co.  v.  Sims,  36  Mo.  App.  224. 
Benev.  Assoc.  v.  Woods,  21  111.  App.  372. 
McLemore  v.  Scales,  68  Miss.  47 ;  8  So.  844. 

94.  Schaeffner's  Est.,   45   Wis.    614. 
Street  v.  Chapman,  29  Ind.  142. 

95.  Waller  v.  Logan,  5  B.  Mon.  515. 
Yater  v.  State,  58  Ind.  299. 
Prussel  v.  Knowles,  5  Miss.  90. 

96.  Burnham  v.  Hatfleld,  5  Blackf.  21. 

97.  Solomon   v.   Norton,    2    Ariz.    100;    11   Pac.    108. 


PLEADING.  381 

defendant,  such  proceedings  without  calling  the  At- 
tention of  the  court  to  defects  in  the  affidavit  amount 
to  a  waiver  of  such  defects,  and  they  cannot  later 
be  urged  as  ground  for  reversal98.  The  rule  is  the 
same  whatever  the  defect  in  the  affidavit,  but  it  will 
not  be  invoked  to  render  valid  an  attachment  pro- 
ceeding carried  on  without  the  filing  of  an  affidavit, 
for  such  affidavit  is  the  basis  upon  which  the  entire 
proceeding  rests. 

B.  DEFECTS  IN  WEIT:— Sec.  383.  The  rule 
above  mentioned  as  applying  to  defects  in  affidavits 
in  attachment  and  garnishment  proceedings  is 
equally  applicable  if  the  defects  are  in  the  writ  is- 
sued upon  such  affidavit.  They  must  be  taken  ad- 
vantage of  before  trial  and  in  the  court  below  or  the 
defects  are  waived  and  the  proceeding  will  be  as 
valid  as  if  the  writ  had  been  regular  in  all  details. 
Or,  as  it  is  said,  defects  in  an  attachment  writ  are 
waived  where  the  defendant  appears  in  the  action 
and  makes  no  objection  in  the  trial  court".  In  this 
case  the  writ  was  issued  by  the  clerk  of  the  probate 
court  instead  of  the  clerk  of  the  district  court.  But 
where  the  defendant  in  an  attachment  suit  died  be- 
fore service  of  the  writ  upon  him,  and  his  executrix, 
after  her  motion  to  quash  the  writ  had  been  over- 
ruled, appeared  and  filed  an  answer  in  the  principal 
suit,  such  appearance  did  not  waive  or  cure  the  want 
of  service  upon  her  intestate100.  If  a  defendant  in 
an  attachment  suit  execute  a  re-delivery  bond,  he  is 
held  to  have  acknowledged  notice  of  the  suit  and  to 
be  bound  to  enter  his  appearance  or  suffer  default 

98.  De  Stafford  v.  Gartley,  15  Colo.  33  ;  24  Pac.  580. 
Rice  v.  Hamptman,  2  Colo.  App.  565  ;  31  Pac.  862. 

99.  Romero  v.  Wagmer,  3  N.  Mex.  167 ;  3  Pac.  50. 
100.     Thompson  v.  White,  25  Colo.  226 ;  54  Pac.  718. 


382  THE  LAW  OF  WAIVEE. 

to  be  taken  against  him1.  But  the  giving  of  such  a 
bond  is  not  a  waiver  of  the  right  to  have  the  writ 
rightfully  issued2,  nor  is  it  a  waiver  of  irregulari- 
ties in  the  attachment  proceedings3.  Of  course  a 
general  appearance  by  the  defendant  and  a  traverse 
of  the  allegations  of  the  attachment  affidayit  con- 
stitute a  waiver  of  all  defects  in  the  notice  or  its 
publication4,  for  by  such  appearance  the  defendant 
submits  himself  to  the  jurisdiction  of  the  court, 
which  is  all  that  could  be  accomplished  by  the  writ 
or  notice.  But  a  waiver  that  would  be  effective  be- 
tween the  plaintiff  and  defendant  might  not  be  bind- 
ing upon  third  parties.  Thus,  where  an  attachment 
was  levied  upon  real  estate,  and  the  defendant  was 
not  served,  and  the  case  was  prosecuted  to  judgment 
on  publication  of  notice  to  him;  and  after  the  sale 
of  the  land  on  execution  the  defendant  appeared  and 
moved  to  set  aside  the  judgment  not  only  on  account 
of  the  illegality  of  the  publication  but  because  the 
judgment  was  rendered  on  insufficient  evidence ;  this 
was  held  to  be  an  appearance  to  the  merits  and  a 
submission  to  the  jurisdiction  of  the  court  which,  so 
far  as  the  defendant  was  concerned,  might  cure  the 
original  defects ;  but  that  it  did  not  so  far  validate 
the  proceedings  db  initio  as  to  vitiate  a  conveyance 
of  the  land  made  by  him  during  the  pendency  of 
the  attachment  proceedings5. 


I.     Richard  v.  Mooney,  39  Miss.  857. 

Blyler  v.  Kline.   64  Pa.  St   130. 

Peebles  v.  Weir,  60  Ala.  413. 

Chastaln  v.  Armstrong,  85  Ala.  216 ;  8  So.  78S. 
X.     Avet  v.  Albo.  21  La.  Ann.  349. 

I.     New  Haven  Co.  v.  Raymond,  76  la.  225 :  40  N.  "W. 
4.     Williams  v.  Stewart,  3  Wis.  773. 
i.     Anderson  v.  Coburn,  27  Wis.  658,  cited  in: 

Drake  on  Attachment.  Art  446a. 


PLEADING.  .383 

C.  WAIVER  OF  ATTACHMENT  LIEN:— 
Sec.  384.  Courts  do  not  cling  as  strictly  to  waivers 
of  attachment  liens  if  the  question  arise  only  be- 
tween the  attaching  plaintiff  and  defendant  as  where 
the  rights  of  other  attaching  creditors  are  involved. 
It  was  held  that  where  the  first  of  several  attachers 
having  a  claim  large  enough  to  absorb  all  the  prop- 
erty attached,  by  agreement  with  the  defendant  took 
all  the  property  in  satisfaction  of  the  debt  and  dis- 
continued the  suit,  as  against  subsequent  attachers 
who  perfected  their  respective  liens  by  judgment  and 
execution,  the  first  attacher  waived  his  lien  and  ob- 
tained no  title  to  the  property6.  But  in  the  absence 
of  rights  of  other  attachers  or  of  third  parties,  an 
attaching  creditor  does  not  waive  his  lien  by  taking 
judgment  and  selling  the  attached  property  while 
an  appeal  from  the  order  dissolving  the  attachment 
is  pending7.  And  mere  irregularities  in  an  attach- 
ment proceeding  do  not  affect  the  attachment  so  as 
to  give  subsequent  attachers  the  right  to  make  them- 
selves parties  for  the  purpose  of  defeating  the  ac- 
tion8. 

D.  WAIVER  BY  GARNISHEE:— Sec.  385.  A 
garnishee  may  waive  defects  in  an  affidavit  upon 
which  the  proceeding  is  based  the  same  as  a  defend- 
ant may.  Thus,  where  a  garnishee  appears  and  an- 
swers and  proceeds  to  a  hearing  upon  citation  issued 


6.  Brandon  Iron  Co.  v.  Gleason,  24  Vt.  228. 
Cole  v.  Wooster,  2  Conn.  203,  cited  in: 
Drake  on  Attachment.  Art.   262. 

7.  Ryan  v.  Maxey,  14  Mont.  81;  35  Pac.  515. 

8.  Seibert  v.  Switzer.  35  Oh.  St.  661. 
Henderson  v.  Stetter,  31  Kans.  56;  2  Pac.  849. 
Scrivener  v.  Dietz.  68  Cal.  1 :  8  Pac.  609. 
Nenny  v.  Schluter.  62  Tex.  327. 

Rudolph  v.  McDonald,  6  Neb.  163. 
Bank  v.  Jandon.  9  La.  Ann.  8. 


THE  LAW  OF  WAIVER. 

on  an  affidavit  for  an  order  for  the  examination  of 
himself  as  garnishee,  any  objection  to  the  sufficiency 
of  the  affidavit9  or  of  the  service  of  the  writ10  is 
thereby  waived.  But  it  is  said  that  when  the  sum- 
mons is  void  for  not  complying  with  the  require- 
ments of  a  statute,  an  appearance  and  answer  by 
the  garnishee  will  not  waive  the  defects,  and  the 
court  will  acquire  no  jurisdiction,  especially  if  the 
defendant  be  a  non-resident  and  make  no  appear- 
ance11. 

4.     IN  CRIMINAL  PROCEDURE: 

A.  JURISDICTION:— Sec.  386.  The  prin- 
ciples hereinbefore  adverted  to  as  affecting  juris- 
diction of  courts  in  civil  actions  are  analagous  to 
those  applicable  in  criminal  cases.  A  court  to  ren- 
der its  acts  valid  and  enforceable,  must  acquire  and 
exercise  proper  jurisdiction  over  the  person  of  the 
defendant  as  well  as  take  lawful  cognizance  of  the 
offense  with  which  he  is  charged.  And  here,  the 
same  as  in  civil  jurisprudence,  jurisdiction  over  the 
person  may  be  given  by  a  voluntary  appearance  of 
the  defendant,  or  the  want  of  it  may  be  waived  by 
his  pleas  entered  in  the  proceedings  as  if  he  had 
been  brought  before  the  court  by  the  successive 
formalities  of  the  law12.  But  jurisdiction  of  an  of- 
fense is  a  matter  derived  solely  by  virtue  of  pro- 


9.     Coffee  v.  Haynes,   124  Cal.   561;    57  Pac.   482;   71  A.   S.   R.   99. 

10.  Wisecarver  v.  Braden,  146  Pa.  St.  42  ;  23  Atl.  393. 
Rosenberg  v.  Chaflin  Co.,  95  Ala.  249;  10  So.  621. 

11.  Phoenix   Co.   i>.   Street,    9   Okla.    422;    60   Pac.   221. 

12.  Rutter  v.  State.  1  la.  99. 
People  v.  Myers,   1   Colo.   508. 
Mills  v.  Commonwealth.  13  Pa.  627. 
U.  S.  v.  Rogers,  23  Fed.   658. 

State  v.  Kinney,  41  la.  424. 


PLEADING.  385 

visions  of  law  and  can  in  no  event  be  imparted  or 
conferred  by  consent  of  the  party  who  is  to  be  af- 
fected thereby.  So,  it  follows  that  a  defendant  can- 
not waive  the  question  of  the  jurisdiction  of  the 
court  over  the  offense  and  any  attempt  to  do  so  will 
render  the  whole  proceeding  void,  including  sentence 
if  it  has  been  passed,  and  the  court  may  release  the 
prisoner  on  habeas  corpus13,  or  the  objection  may 
even  be  raised  in  an  appellate  court14,  and  such  a 
case  cannot  be  carried  into  the  appellate  court  by 
agreement15. 

Sec.  387.  As  noted  above,  however,  it  is  only 
the  right  given  by  law  to  be  tried  by  a  court  having 
proper  cognizance  of  his  offense  which  a  defendant 
cannot  waive.  All  other  objections  touching  the 
court's  jurisdiction  he  may  insist  upon  or  waive  as 
he  may  think  best  suited  to  his  interests.  Thus  a 
prisoner  has  the  right  to  be  brought  to  the  state 
which  is  the  scene  of  the  offense  charged  against 
him,  by  proper  extradition  papers ;  but  if  he  volun- 
tarily accompany  the  officer  without  the  use  of  such 
papers,  he  thereby  waives  such  right  and  cannot 
thereafter  object  to  the  regularity  of  the  papers16. 

B.  NO  OFFENSE  CHAKGED  IN  INDICT- 
MENT:— Sec.  388.  Since  the  principles  governing 
in  civil  actions,  as  hereinbefore  noted,  are  to  be  ap- 
plied to  criminal  cases  in  so  far  as  they  may,  it  fol- 

13.  Rice  v.  State,  3  Kans.  141. 
People  v.  Durell.  1  Idaho  30. 
Reich  v.  State.  53  Ga.  73. 
Ex  Parte  Snyder,   64  Mo.   58. 

Simpson  v.  U.  S.,   9  How.  571    (U.  S.) 

14.  Jackson  v.  Commonwealth.  13  Gratt.  801. 

15.  Rutter  v.  State.  1  la.  99. 
People  v.  Myers,  1  Colo.  508. 

16.  State   v.    Cutshall.    109    N.    Car.    764 ;    14    S.    E.    107 ;  26  A.  S.  R. 

599. 


386  THE  LAW  OF  WAIVER. 

lows  that  as  in  civil  actions  the  complaint  or  petition 
must  state  a  cause  of  action — which  requirement  can- 
not be  waived  by  the  defendant — so  the  indictment 
or  complaint  in  a  criminal  prosecution  must  charge 
an  offense  against  the  defendant,  or  the  proceeding 
or  any  judgment  rendered  thereon  will  not  be  sus- 
tained. And  this  requirement  cannot  be  waived  by 
the  defendant17,  although  statutes  have  provided 
means  for  liberal  amendments  of  defective  charges. 
There  can  be  no  legal  punishment  without  an  accusa- 
tion, and  every  wrongful  fact  with  each  particular 
modification  thereof  which,  in  law,  is  required  to  be 
taken  into  account  in  determining  the  punishment 
upon  a  finding  of  guilty,  must  be  alleged  in  the  in- 
dictment. For  in  every  criminal  prosecution  the 
accused  shall  enjoy  the  right  to  be  informed  of  the 
nature  and  cause  of  the  accusation  against  him18, 
and  this  rule  requires  that  the  indictment  or  infor- 
mation shall  contain  the  essential  elements  of  the 
crime  charged19. 

C.  FORMER  JEOPARDY:— Sec.  389.  The 
right  of  a  defendant  not  to  be  put  in  jeopardy  a  sec- 
ond time  for  the  same  offense  is  as  sacred  as  the 
right  to  a  trial  by  jury,  and  is  guarded  with  as  much 
care  by  the  common  law  and  the  constitution20.  But 
it  is  a  right  which  may  be  availed  of  by  a  defendant 
only  by  a  special  plea  for  the  support  of  which  it  is 
necessary  to  show  the  legal  conviction  or  acquittal 
of  the  defendant  in  a  court  of  competent  jurisdic- 
tion and  also  the  identity  of  the  person  convicted 
or  acquitted  and  the  offense  for  which  he  was  tried. 


17.  Pattee  v.  State.  109  Ind.  545 :  10  N.  E.   421. 

18.  U.  S.  Const  Amend.  Art.  6. 

19.  Rig-fra  v.  State.  104  Ind.  262  ;  3  N.  E.  886. 

>•.  Dinkey  v.  Commonwealth.  17  Pa.  St.  126;   55  A.  D.  542. 


PLEADING.  387 

The  special  plea  must  be  made  in  the  trial  court  or 
this  defense  will  be  deemed  waived21.  And  when- 
ever a  verdict,  whether  valid  in  form  or  not,  has 
been  rendered  on  an  indictment,  either  good  or  bad, 
and  the  defendant  moves  in  arrest  of  judgment  or 
applies  to  the  court  to  vacate  a  judgment  already 
entered  for  any  cause,  as  for  many  causes  he  may, 
he  will  be  presumed  to  waive  any  objection  to  being 
put  a  second  time  in  jeopardy  and  .so  he  may  or- 
dinarily be  tried  anew.  If  the  verdict  against  the 
prisoner  is  wrong,  and  it  was  produced  by  some  er- 
ror of  the  court  to  which  he  objected,  a  just  view  of 
the  constitutional  guaranty  would  permit  him  to 
have  the  error  corrected  without  waiving  his  right 
to  object  to  a  second  jeopardy.  Still  the  practice 
in  most  cases  has  been  otherwise22.  And  while  the 
plea  is  not  permissible  as  a  defense  under  the  gen- 
eral issue  and  must  be  specially  pleaded23,  it  is  said 
that  such  is  not  necessary  where  two  trials  of  the 
same  case  were  in  the  same  court24. 

Sec.  390.  As  to  what  constitutes  a  second  jeop- 
ardy is  a  matter  upon  which  not  all  courts  agree, 
and  it  is  a  question  with  which  we  are  not  here  to 
contend.  Our  object  in  these  lines  is  to  present  the 
principles  and  proceedings  by  which  a  defendant  is 
held  to  have  waived  or  surrendered,  or  not  to  have 
waived  or  surrendered  the  protection  in  this  behalf 
which  organic  law  has  guaranteed  to  him.  And  one 
of  the  primary  principles  in  this  regard  is  that  the 

21.  In  re  Allison,  13  Colo.   525 ;   22  Pac.   820 ;   16  A.  S.  R.  224. 

22.  Bishop,  Crlm.  Law,  Sec.   998-9,  cited  and  followed  In: 
Jones  v.  State,  25  Tex.  App.  716 ;  8  A.  S.  R.  452. 

23.  Rickles  v.  State,   68  Ala.  538. 
State  v.  Morgan,  95  N.  Car.  641. 

34.     Robinson  v.  State.  21  Tex.  App.  160;  17  S.  W.  632. 
Foster  v.  State,  25  Tex.  App.  544  ;  18  S.  W.  664. 


388  THE  LAW  OF  WAIVER. 

procuring  of  a  new  trial  is  a  waiver  of  the  privilege, 
for  the  defendant  thereby  consents  to  the  second 
trial,  and  the  rule  applies  that  a  party  cannot  ob- 
ject to  that  to  which  he  has  consented25.  The  rea- 
sons are  obvious  in  criminal  cases  and  have  been  well 
stated  thus :  The  new  trial  is  often  the  convicted 
prisoner's  only  safeguard  left.  Deny  him  that  on  the 
plea  that  he  shall  not  twice  be  put  in  jeopardy  for 
the  same  offense,  and  you  stab  him  to  the  heart  with 
the  weapon  intended  only  for  his  security  and  de- 
fense. Such  a  construction  of  the  rule  would  let  him 
be  hung,  however  innocent,  in  order  to  avoid  the 
hazard  of  life  or  limb  against  which  he  is  to  be  se- 
cured by  the  rule  made  for  his  benefit.  Judges  may 
be  perplexed  in  giving  interpretation  and  applica- 
tion to  the  rule,  and  may  stick  in  the  bark  in  so  do- 
ing; but  it  seems  that  an  innocent  man,  or  guilty 
either,  convicted  wrongfully  and  sentenced  to  be 
hung,  with  the  halter  around  his  neck,  could  not  be 
long  nor  doubtful  in  deciding  for  himself  which  con- 
struction of  the  rule  was  for  his  interest  and  neces- 
sities, which  was  in  harmony  with  the  spirit  of  jus- 
tice and  humanity  that  dictated  the  prisoner's 
safety26. 

Sec.  391.    But  the  right  to  interpose  a  plea  of 
former  jeopardy  was  held  not  waived  by  the  filing 

25.  Gannon  v.  People.  127  111.  507:  21  N.  E.  525;  11  A.  S.  R.  147. 
State  v.  Hart.  33  Kans.   218;   6  Pac.   288. 

State  v.  Jenkins.  84  N.  Car.   812. 

Kendall  v.  State.  65  Ala.  492. 

State  v.  Patterson,  88  Mo.  88. 

Territory  v.  Dorman.   1  Ariz.   56;   25  Pac.  516. 

Cochrane  v.  State,  6  Md.  400. 

Small  «.  State.   63  Ga.  386. 

State  v.  Blaisdell.  59  N.  H.  328. 

State  v.  Knouse.  33  la.  365. 

26.  Younser  v.  State.  2  W.  Va.  579 :  98  A.  D.  791. 
Sutcliffe  v.  State.  18  Oh.  469 ;  51  A.  D.  459. 


PLEADING.  389 

of  a  motion  to  set  aside  a  verdict  rendered  by  the 
jury  in  the  absence  of  the  defendant27,  the  court  not- 
ing that  a  distinction  existed  between  such  a  pro- 
cedure and  a  motion  for  a  new  trial.  This  proposi- 
tion, however,  has  been  denied  on  the  theory  that 
such  absence  was  itself  a  waiver28.  The  criterion, 
it  occurs  to  us,  should  be  whether  or  not  he  volun- 
tarily absented  himself. 

Sec.  392.  Fraud  has  the  effect  of  vitiating  pro- 
ceedings in  a  criminal  prosecution  as  much  as  in  a 
civil  action.  And  where  it  is  practiced  by  a  defend- 
ant to  procure  his  acquittal,  it  constitutes  a  waiver 
of  his  right  not  to  be  twice  put  in  jeopardy  for  the 
same  offense29.  And  while  not  constituting  a  waiver 
—which  can  be  produced  only  by  some  act  of  the 
defendant  himself — the  result  is  the  same  if  the 
fraud  be  the  work  of  a  third  party  and  unknown  to 
the  defendant30.  The  fraud  may  be  a  prosecution 
sought  and  procured  by  the  defendant  himself  in 
the  hope  of  escaping  a  subsequent  prosecution  and 
heavier  punishment,  but  whatever  it  may  be,  the 
prisoner,  by  such  fraud,  bars  himself  from  the  right 
to  say  that  he  has  once  been  prosecuted  on  the 
charge  and  should  not  again  be  put  in  jeopardy31. 


27.  Nolan  v.  State.  55  Ga.  521;  21  A.  R.  281. 
Cook  v.  State.  60  Ala.  39;  31  A.  R.  31. 

28.  Temple  v.  Commonwealth,   14  Bush  769;  29  A.  R.  442. 

29.  State  v.  Swepson,  79  N.  Car.  632. 

30.  State  v.  Washington,  89  N.  Car.  535  ;  45  A.  R.  700. 

31.  State  v.  Simpson.   28  Minn.  66;   9  N.  W.   78;   41  A.  R.   269. 
Watkina  v.  State.   68  Ind.  427  ;   34  A.  R.  273. 

Big-ham  v.  State.   59  Miss.   529. 

State  v.  Reed.  26  Conn.  202. 

Commonwealth  v.  Dascom,   111  Mass.   404. 

Warriner  v.  State,  3  Tex.  App.  104 ;  30  A.  R.  124. 

McParland  v.  State.  68  Wis.  400;  32  N.  W.  226;  60  A.  R.  867. 

State  v.  Cole,   48  Mo.   70. 

State  v.  Nichols,   38  Ark.   550. 


390  THE  LAW  or  WAIVBE. 


CHAPTER  15. 

CRIMINAL  PRACTICE. 

Sectiom 

1.  IN  GENERAL   393 

2.  RIGHT  TO  JURY  TRIAL 394 

3.  JURY  OF  FEWER  THAN  TWELVE 396 

A.  In  Felonies  397 

B.  In  Misdemeanors  398 

4.  WAIVER   OF   PRIVILEGE   FROM    SELF-CRIMINA- 

TION   399 

6.     RIGHT  OF  ACCUSED  TO  BE  PRESENT  AT  TRIAL. 403 
A    Crimes  Less  Than  Capital 404 

B.  Capital  Offenses  405 

C.  Who  May  Waive  The  Right 406 

1.  IN  GENERAL:— Sec.  393.    The  following 
considerations  in  the  chapter  on  Civil  Practice  cover 
a  greater  part  of  the  field  of  criminal  practice,  as 
the  rules  treated  are  equally  applicable  to  the  two. 
But  it  is  necessary  to  here  consider  a  few  subjects 
strictly  under  the  operation  of  the  rules  and  prin- 
ciples of  practice  in  criminal  cases.    As  far  as  the 
law  of  waiver  has  to  do  with  the  practice  in  crim- 
inal cases,  it  may  be  noted  that,  while  in  civil  ac- 
tions, a  party  having  knowledge  of  a  right  belong- 
ing to  him  may  insist  upon  that  right  or  waive  it 
as  he  may  think  best  suited  to  his  interests,  such 
is  not  true  in  criminal  actions  as  to  all  rights  which 
a  defendant  has,  for  some  of  these  he  cannot  be  de- 
prived of  even  with  his  own  consent. 

2.  EIGHT    TO    JURY    TRIAL:— Sec.    394. 
Some  differences  of  opinion  exist  among  the  authori- 
ties as  to  the  power  of  an  accused  to  waive  the  right 
to  be  tried  by  a  jury  and  submit  the  question  of  his 
guilt  to  the  court.     The  trend  of  the  authorities 


CRIMINAL  PRACTICE.  391 

seems  to  be,  however,  to  the  principle  that  in  fel- 
onies a  defendant  cannot  waive  this  right  but  that 
in  misdemeanors  he  may,  the  distinction  thus  made 
being  based  upon  the  proposition  that  defendants  in 
the  latter  class  of  cases  were  not  absolutely  given  a 
jury  trial  at  common  law,  therefore  such  was  not 
fully  guaranteed  to  them  by  the  Constitution32.  We 
recognize  this  principle  as  one  adhered  to  by  nearly 
all  the  authorities,  but  we  confess  to  a  hesitancy  in 
accepting  as  our  own  conclusion  the  propriety  of 
allowing  a  defendant  in  one  class  of  cases  to  forego 
his  right  to  a  jury  trial  and  refusing  the  discretion 
to  a  defendant  in  another  class  of  crimes.  Eeason 
would  dictate  that  the  grade  of  the  crime  should  be 
immaterial.  The  requirement  of  a  jury  trial  is  se- 
cured by  the  constitution  upon  a  principle  of  public 
policy33,  as  well  as  through  considerations  for  the 
defendant.  And  that  public  policy  is  contravened 
and  the  rights  of  the  accused  jeopardized  by  putting 
him  in  a  place  where  temptations  may  be  held  out 
to  him  to  waive  a  jury  trial  and  take  his  chances 
with  the  court  in  a  case  where  his  crime  is  one  of 
low  grade  or  one  that  would  subject  him  to  light 
punishment,  as  much  as  where  the  punishment 
might  be  death  or  life  imprisonment.  Another  dis- 
tinction has  been  made  between  cases  in  which  the 
constitution  or  statute  gives  the  accused  the  right  to 


32.  Dailey  v.  State.  4  Oh.  St.  58. 
"Ward  v.  People,  30  Mich.  116. 

Arnold  v.  State.  38  Neb.  752 ;   57  N.  W.  378. 
State  v.  Davis.   66  Mo.   684. 
State  v.  Worden.  46  Conn.  349. 
Darst  v.  People.  51  111.  286. 
Murphy  «.  State.  97  Ind.  579. 

33.  State  v.   Lockwood.   43   Wls.    405,   holding  the    right    to    a    Jury 

trial    upon    indictment   or   information    one   which    can    not   be 
waived ;  a  doctrine  discarded  for  a  more  reasonable  one  ?n : 
In  re  Staff,  63  Wis.  285  ;  23  N.  W.  587. 


392  THE  LAW  OP  WAIVER. 

a  jury  trial  and  those  cases  where  a  jury  trial  is 
expressly  required.  In  the  latter  class  of  cases,  it  is 
said  that  in  no  event  can  a  jury  trial  be  waived34. 
But  it  is  said  that  the  right  may  be  waived  in  pros- 
ecutions for  misdemeanors  where  the  right  to  a 
jury  trial  is  given  by  statute  in  cases  which  could 
be  tried  without  a  jury  at  common  law35. 

Sec.  395.  Judge  Cooley  says:  "The  infirmity 
in  case  of  a  trial  by  a  jury  of  less  than  twelve,  by 
consent,  would  be  that  the  tribunal  would  be  one 
unknown  to  the  law,  created  by  mere  voluntary  act 
of  the  parties ;  and  it  would  in  effect  be  an  attempt 
to  submit  to  a  species  of  arbitration  the  question 
whether  the  accused  has  been  guilty  of  an  offense 
against  the  state."  We  suppose  the  same  reason- 
ing would  apply  to  the  waiver  of  a  jury.  But  this 
right  to  a  jury  is  no  more  pronounced  by  the  con- 
stitution than  other  rights  given  a  defendant.  He 
cannot  twice  be  put  in  jeopardy  for  the  same  offense. 
Yet  unless  he  properly  object  to  an  attempt  to  twice 
jeopardize  him,  he  will  be  held  to  have  waived  his 
privilege.  And  the  same  is  true  of  his  right  to  have 
the  witnesses  confront  him,  to  have  a  speedy  trial, 
and  many  other  rights  conferred  upon  him  by  con- 
stitutional provision.  Then  where  is  the  difference 
between  felonies  and  misdemeanors  except  in  the 
degree  of  punishment?  A  misdemeanor  may  be  as 
disgraceful  and  humiliating  to  one  man  as  a  felony 
to  another.  And  while  we  are  aware  that  the  pre- 
ponderance of  authority  is  in  favor  of  the  distinction 
and  refuses  to  permit  a  waiver  in  felony  cases,  we 
do  think  that  the  better  reasoning  sanctions  a  waiver 


34.  Arnold  v.  State.  38  Neb.  752;  57  N.  W.  378. 

35.  People  v.  Weeks,  99  Mich.  86;   57  N.  W.  1091. 


CRIMINAL  PRACTICE.  393 

in  both  classes  of  cases  either  of  the  whole  jury  or 
any  number  of  jurors,  thus  giving  to  the  accused 
an  additional  benefit  of  saying  whether  it  is  to  his 
own  best  interests  to  be  tried  by  the  court  or  a  jury. 

3.  JUEY  OF  FEWER  THAN  TWELVE:— 
Sec.  396.  The  courts  are  by  no  means  harmonious 
in  their  conclusions  regarding  the  power  of  a  de- 
fendant in  a  criminal  prosecution  to  waive  his  right 
to  be  tried  by  the  full  panel  of  jurymen  as  provided 
by  law  and  consent  to  be  tried  by  fewer.  Although 
a  few  cases36  seem  to  pronounce  the  doctrine  that 
an  accused  person  may  in  all  cases  waive  his  con- 
stitutional right  to  be  tried  by  the  full  number  of 
jurors,  yet  in  nearly  all  cases  the  question  is  de- 
cided by  the  courts  according  to  the  degree  of  the 
crime  with  which  the  defendant  is  charged. 

A.  IN  FELONIES:— Sec.  397.  By  far  the 
greater  number  of  authorities  hold  to  the  doctrine 
that  in  cases  of  felony  the  constitutional  right  to  be 
tried  by  a  common-law  jury  of  twelve  men  cannot 
be  waived,  and  that  a  verdict  of  a  jury  of  fewer  than 
that  number,  even  by  consent  of  the  accused,  will 
be  set  aside  as  a  nullity37.  To  this  opinion  the  Su- 
preme Court  of  the  United  States  gives  the  weight 
of  its  authority38.  There  are  many  considerations 
and  reasons  why  this  doctrine  should  be  enforced. 
For  a  criminal  prosecution  involves  public  wrongs, 
a  breach  and  violation  of  public  rights  and  duties 


36.  State  v.  Grossheim.  79  la.  75  :   44  N.  W.  541. 

State  v.  Kaufman,  51  la.  578;  2  N.  W.  275;  33  A.  R.  148. 
State  v.  White.  33  La.  Ann.  1218. 
And  see:  Alfred  v.   State.   6  Ga.  483. 

37.  State  v.  Mansfield.   41  Mo.   470. 

Arnold'  v.  State.   38  Neb.   752  ;  57  N.  W.  378. 
Allen  v.  State.  54  Md.   461. 

38.  Thompson  v.  Utah.   170  U.   S.   343  ;    42  L.  Ed.   1061. 


394  THE  LAW  OF  WAIVER. 

which  affect  the  whole  community  considered  as  a 
community,  in  its  social  aggregate  capacity,  and  the 
end  such  suits  have  in  view  is  the  prevention  of 
similar  offenses,  not  atonement  or  expiation  for 
crimes  committed,  and  the  penalties  and  punish- 
ments for  the  enforcement  of  which  they  are  a  means 
to  an  end  are  not  in  the  discretion  or  control  of  the 
party  accused,  for  no  one  has  a  right  by  his  own 
voluntary  act  to  surrender  his  liberty  or  part  with 
his  life ;  the  state,  the  public  have  an  interest  in  the 
preservation  of  the  lives  and  liberties  of  its  citizens, 
and  will  not  allow  them  to  be  taken  away  without  due 
process  of  law  when  forfeited,  as  they  may  be,  as  a 
punishment  for  crime39.  Therefore,  the  denial  of 
the  right  to  waive  the  number  of  jurors  provided  by 
law  in  felony  cases  arises  from  the  fact  that  the 
substantial  constitution  of  the  legal  tribunal,  and  the 
fundamental  mode  of  its  proceeding  are  not  within 
the  power  of  the  parties  to  modify  or  deal  with  in 
other  than  the  expressly  provided  manner40. 

B.  MISDEMEANOBS:— Sec.  398.  In  misde- 
meanors, the  courts  seem  very  generally  to  adhere 
to  a  doctrine  contrary  to  that  announced  above  as 
governing  the  trial  for  felonies.  And  in  this  class 
of  cases  the  rule  is  that  a  defendant  may,  by  his  ex- 


39.  Canceml  v.  People.  18  N.  Y.  128. 

40.  State  v.  MoClear.  11  Nev.  41. 

Carpenter  v.  State.  4  How.  163   (Miss.)  ;  34  A.  D.  116. 

Brazier  v.  State.  44  Ala.  387. 

Territory  v.  Oritz.   8  N.  Mex.   154;   42  Pac.   87. 

Territory  v.  Ah  Wah.  4  Mont.  149 ;  47  A.  R.  341. 

State  v.  Everett.  14  Minn.  447. 

Work  v.  State.  2  Oh.  St.  296 ;  59  A.  D.  671. 

People  v.  O'Neil.  48  Cal.  257. 

State  v.  Meyers,   68  Mo.   266. 

Hill  v.  People,  16  Mich.  351. 

State  v.  Cox.  8  Ark.   436. 

People  v.  Guidici.  100  N.  Y.  503  :  3  N.  E.  49Z. 


CRIMINAL  PRACTICE.  395 

press  consent,  waive  a  jury  of  twelve  and  accept  the 
verdict  of  a  less  number,  the  reason  being  that  the 
right  to  a  trial  by  jury  of  twelve  was  not  in  all  such 
cases  fully  guaranteed  to  him  by  the  constitution,  as 
it  did  not  exist  as  an  absolute  right  at  common 
law41. 

4.  WAIVER  OP  PRIVILEGE  FROM  SELF- 
CRIMINATION  :— Sec.  399.  Every  person  accused 
of  crime  is  protected  by  a  constitutional  privilege 
from  being  compelled  to  give  evidence  against  him- 
self. Under  this  protection  an  accused  cannot  be 
required  against  his  will  to  testify  in  his  own  case. 
But  it  is  not  a  bar  to  his  testifying  if  he  desires. 
And  all  courts  agree,  either  by  reason  of  statutory 
provision  or  by  construction  of  the  privilege  itself 
that  the  right  may  be  waived  by  the  accused  and 
that  such  waiver  occurs  where  he  takes  the  stand 
in  his  own  behalf.  The  status  of  the  accused  is 
thereby  changed  from  that  of  a  defendant  to  that 
of  a  witness,  and  the  same  as  any  other  witness,  he 
may  be  compelled  to  give  evidence  against  himself 
concerning  all  matters  touched  upon  in  his  direct 
examination. 

Sec.  400.  But  the  courts  are  far  from  harmo- 
nious as  to  the  extent  such  waiver  operates.  On  the 
one  hand,  it  is  said  that  if  an  accused  testify,  he  is 
at  liberty  to  stop  at  any  point  he  chooses,  and  it 
must  be  left  to  the  jury  to  give  a  statement  which 
he  declines  to  make  a  full  one,  such  weight  as  under 
the  circumstances  they  think  it  entitled  to;  other- 
wise, the  statute  must  have  set  aside  and  overruled 

41.     Darst  v.  People,  51  111.  286 ;   2  A.  R.  301. 
Commonwealth  v.  Dalley,  12  Cush.  80. 
State  v.  Borowsky.   11  Nev.   119. 
State  v.  Sackett.  39  Minn.  69;  38  N.  W.  773. 
Warwick  v.  State.  47  Ark.  568;  2  S.  W.  335. 


396  THE  LAW  OF  WAIVER. 

the  constitutional  maxim  which  protects  an  accused 
party  against  being  compelled  to  testify  against  him- 
self, and  the  statutory  privilege  becomes  a  snare 
and  a  danger42.  Under  this  rule,  when  a  defendant 
takes  the  stand  in  his  own  behalf,  he  waives  his 
privilege  as  to  those  matters  only  concerning  which 
he  testifies  on  direct  examination,  and  his  cross-ex- 
amination must  be  limited  to  those  matters  referred 
to  in  his  examination-in-chief43. 

Sec.  401.  On  the  other  hand,  there  is  a  rule 
adopted  by  perhaps  a  majority  of  the  states  to  the 
effect  that  when  an  accused  person  takes  the  stand 
in  his  own  behalf,  he  thereby  establishes  a  complete 
waiver  of  his  constitutional  privilege  of  refusing 
to  give  testimony  against  himself,  and  may  on  cross- 
examination  be  asked  any  question  pertinent  to  the 
issue  or  calculated  to  test  his  accuracy,  veracity  or 
credibility44.  If  this  rule  stopped  here,  it  would  not 

42.  Cooley's  Constitutional  Limitations,   384-6    (6th  Ed.). 

43.  State  v.  Chamberlin,  89  Mo.  120  ;   1  S.  W.  145. 
State  v.  Saunders,  14  Oreg.  300 ;  12  Pac.  441. 
State  v.  Underwood,  44  La.  Ann.   852. 

People  v.  Wong  Ah  Leong,   99  Cal.   440  ;   34  Pac.  105. 

People  v.  Roemer,  114  Cal.  51 ;  45  Pac.  1003. 

Mitchell  v.  State,  94  Ala.  68  ;  10  So.  518. 

State  v.  Gallo,  18  Oreg.  425;   23  Pac.  264. 

Howard  v.  Commonwealth,  22  Ky.  L.  R.  1845  ;  61  S.  W.  756. 

State  v.  O'Hara,   17  Wash.  525  ;   50  Pac.   477  ;   94  A.  S.  R.  864. 

44.  Spies  v.  People,  122  111.  1;   12  N.  E.  865;   3  A.  S.  R.  320. 
People  v.  Tice,  131  N.  T.  651;   30  N.  E.   494;   15  L.  R.  A.   669; 

directly  declaring  the  rule  announced  by  Cooley  to  be  out  of 
harmony  with  the  authorities  and  unsound  in  principle. 

State  v.  Callian,  109  La.  346;  33  So.  363. 

Baker  v.  State,  58  Ark.  513  ;  25  S.  W.  603. 

Parker  v.  State,  136  Ind.  284;  35  N.  W.  1105. 

Com.  v.  Clark,  145  Mass.  251  ;  13  N.  E.  888. 

People  v.  Sutherland,  104  Mich.  468;  62  N.  W.  566. 

State  v.  Blitz,  171  Mo.  530;  71  S.  W.  1027. 

Com.  v.  Mozier,  135  Pa.  St.  221;  19  Atl.  943. 

People  v.  Larsen,  10  Utah  143  ;  37  Pac.  258. 

Payne  v.  State,  40  Tex.  Crim.  290;  50  S.  W.  363. 

State  v.  Cohn,  9  Nev.  179. 

State  r.  Weaver,  35  Oreg.  415;   58  Pac.  109. 

State  v.  Snyder,  8  Kans.  App.  686;  57  Pac.  135. 


CRIMINAL  PRACTICE.  397 

be  as  efficacious  in  dealing  out  justice  to  all  parties 
as  the  rule  first  announced.  But  there  is  a  limitation 
or  qualification  of  the  rule  to  this  extent,  that  the 
accused  may,  on  cross-examination,  be  asked  only 
such  questions  as  elicit  matters  pertinent  to  the  issue 
or  such  as  may  be  proved  by  other  witnesses45. 

Sec.  402.  We  can  see  no  reason  for  creating  a 
distinction  between  a  defendant  witness  and  any 
other  witness  who  is  interested  in  the  outcome  of  the 
action.  In  the  case  of  a  party  to  a  civil  action  who 
takes  the  stand  to  testify,  the  same  rules  apply  to 
him  that  apply  to  any  other  witness,  for  his  status 
is  changed  from  that  of  a  party  to  that  of  a  witness. 
And  the  same  rules  should  apply  to  an  accused  in  a 
criminal  trial  who  testifies  for  himself,  and  he  should 
be  entitled  to  the  same  privileges  and  subject  to  the 
same  treatment,  and  to  be  contradicted,  discredited 
and  impeached  the  same  as  any  other  witness46. 

5.  EIGHT  OF  ACCUSED  TO  BE  PRESENT 
AT  TRIAL :— Sec,  403.  It  is  the  right  of  every  per- 
son on  the  trial  of  a  criminal  charge  against  him  to 
be  personally  present  at  all  times  during  the  course 
of  his  trial  and  during  the  rendition  of  verdict  and 
the  passing  of  sentence ;  and  it  is  irregular  to  begin 
his  trial  without  his  presence  and  erroneous  to  de- 
prive him  of  the  right  without  his  consent. 

A.  CRIMES  LESS  THAN  CAPITAL :— Sec. 
404.  While  it  has  been  held  that  in  the  trial  for 
crimes  not  capital  the  defendant  is  entitled  to  and 

45.  State  v.  Curtis,  39  Minn.  357;   40  N.  W.  263. 
Bailey  v.  State,  67  Miss.  333  ;  7  So.  348. 
People  v.  Pinkerton,  79  Mich.  110  ;  44  N.  W.  180. 
State  v.  Wells,   54  Kans.   160  ;   37  Pac.   105. 
State  v.  Clark,  100  la.  47 ;   69  N.  W.  257. 

State  v.  Pancoast,  5  N.  Dak.  514 ;   67  N.  W.  1052. 

46.  State  v.  Pfefferle,  36  Kans.  90 ;  12  Pac.  416. 


398  THE  LAW  OF  WAIVER. 

must  be  present  during  the  trial  and  rendition  of 
verdict,  and  that  a  verdict  rendered  in  his  absence 
was  void47,  the  better  rule  is  that  the  right  to  be 
present  is  one  which  the  defendant  cannot  be  de- 
prived of  without  his  consent,  but  that  by  his  vol- 
untary act  he  may  waive  the  right  and  the  verdict 
will  be  valid48.  The  absence  must  be  voluntary  in 
order  to  constitute  a  waiver  of  the  right,  although  it 
has  been  held  that  the  accused  cannot  waive  the  right 
whether  his  absence  is  voluntary  or  involuntary49. 
"When  a  prisoner  is  so  absent,  it  is  usually  due  to 
his  own  act,  as  where,  during  the  progress  of  the 
trial,  he  absconds;  and  it  is  the  rule  generally  ad- 
hered to  that  if  the  defendant  flees  the  court  while 
his  trial  is  pending,  he  waives  his  right  to  be  present 
during  the  remainder  of  the  trial  and  is  not  entitled 
to  be  discharged  or  have  a  new  trial  on  account  of 
his  absence50.  It  is  said  that  while  the  constitution 
guarantees  him  the  right  to  be  present,  this  guaranty 
was  never  intended  to  include  the  right  to  abscond 
and  then  complain  of  his  own  absence51. 


*7.     Sneed  v.  State,  5  Ark.  431 ;  41  A,  D.  102. 

Maurer  v.  People,   43  N.  T.   1. 

People  v.  Beauchamp,  49  Cal.  41. 
M.     1  Bishop's  New  Crlm.  Proc.  Sec.  266. 

State  v.  Guinness,  16  R.  I.  401;  16  Atl.  910. 

Barton  v.  State,  67  Ga.  655 ;  44  A.  R.  743. 

State  v.  Hope,  100  Mo.  347;  13  S.  W.  490;  8  L.  R.  A.  608. 

Gales  v.  State,  64  Miss.  105 ;  8  So.  167. 

State  v.  Way,  76  Kans.  928;   93  Pac.  159;   14  L.  R.  A.    (N.  S.) 
603. 

Peterson  v.  State,  64  Neb.  875 ;   90  N.  W.  964. 

Hill  v.  State,  118  Ga.  21;  44  S.  E.  820. 

Btoddard  v.  State,  132  Wis.  520. 
49.     Summeralls  v.  State,  37  Fla.  162;  20  So.  242;  53  A.  S.  R.  247. 

Clark  v.  State,  4  Humph.  254   (Tenn.) 

•0.     State  v.  Kelley,    97    N.    Car.    404;    2    S.    B.    185;    2    A.  S.  R. 
299. 

Com.  v.  McCarthy,  163  Mass.  458;  40  N.  B.  766. 

U.   S.  v.  Laughery,   13   Blatchf.   267;   26  Fed.   Cas.  No.   15,631. 
SI.     Gore  V.  State.  52  Ark.  285;   12  S.  W.   664;  5  L.  R.  A.   832. 


CRIMINAL  PRACTICE.  399 

B.  CAPITAL  OFFENSES:— Sec.  405.     The 
rule  among  the  authorities  seems  to  be  that  in  capital 
offenses  the  accused  not  only  has  the  right  to  be 
present  at  all  times  during  the  course  of  his  trial 
when  anything  is  said  or  done  affecting  him  as  to 
the  charge  against  him,  and  at  the  rendition  of  ver- 
dict and  passing  of  sentence,  but  that  he  must  be 
present,  that  he  cannot  waive  the  right,  and  that  the 
taking  of  any  steps  without  his  presence  renders  the 
proceedings  void52. 

C.  WHO  MAY  WAIVE  THE  EIGHT:— Sec. 
406.    Although  there  are  apparent  exceptions53,  the 
holding  of  the  courts  appears  to  be  that  the  right  of 
an  accused  to  be  present  during  the  progress  of  a 
trial  and  the  rendition  of  verdict  and  imposing  of 
sentence  against  him,  is  a  right  purely  personal  to 
himself;  one  that  cannot  be  taken  from  him  except 
by  his  consent,  and  one  that  no  other  person  can 
forego  for  him.     Consequently,  it  is  held  that  the 
right  cannot  be  waived  by  counsel  for  the  prisoner54. 

§2.     State     v.     Kelley,     97     N.     Car.    404;    2    S.    B.    186;     2     A.    S. 
R.    299. 

Sherrod  v.  State,   (Miss.)  ;  20  So.  554. 
53.     Wells  v.  State,  147  Ala.  140 ;  41  So.  630. 

Cawthon  v.  State,  119  Ga.  395 ;  46  S.  E.  897. 
14.     SPercer  v.  State,  118  Tenn.  765;  103  S.  W.  780. 

Green  v.  People,  3  Colo.  68. 

Prlne  v.  Com.,  18  Pa.  St.  103. 

Cook  v.  State,  60  Ala.  39 ;  31  A.  R.  31. 


400  THE  LAW  OF  WAIVER. 

CHAPTEE  16. 
CIVIL  PRACTICE. 

SUBDIVISION  1. 

Section 

1.  OBJECTIONS  TO  SPECIAL  JUDGE 407 

2.  OBJECTIONS  TO  JURORS: 

A.  Panel   408 

B.  Poll    409 

3.  RIGHT  TO  JURY  TRIAL 412 

A.     Number  Of  Jurors 414 

4.  WITNESSES: 

A.  Oath  416 

B.  Depositions    417 

C.  Competency    419 

D.  Self-crimination  420 

(1)  Time  to  claim  privilege 422 

(2)  Privilege  must  be  claimed 423 

(3)  Extent  of  waiver 424 

SUBDIVISION  2. 
TRIAL   PRACTICE. 

1.  IN  GENERAL   426 

2.  OBJECTIONS  TO  EVIDENCE: 

A.  Admission — 

(1)  Time  to   object 428 

(2)  Specifying  evidence  and  ground  of  ob- 

jection— 

(a)  In  general  431 

(b)  Incompetency    433 

(c)  Incompetent,  irrelevant  and  im- 

material    434 

(d)  Exceptions  to  rule 438 

(e)  Objections   abandoned    439 

B.  Variance  440 

3.  EXCEPTIONS  TO  RULINGS  OF  THE  COURT: 

A.  In  General 441 

B.  To  Exclusion  Of  Evidence 443 

C.  To  Admission  Of  Evidence 444 

4.  WAIVER   AS  TO  NON-SUITS 447 

5.  DEMURRER  TO  THE  EVIDENCE 452 

«.     DIRECTING  VERDICT   .  ..455 


CIVIL  PRACTICE.  401 

f.    INSTRUCTIONS: 

A.  In  General  456 

B.  Instructions  Given   457 

(1)  Waiver  of  written  instructions 459 

(2)  Exceptions    460 

C.  Instructions  Refused   463 

(1)     Exceptions  to  refusal  to  instruct 465 

D.  Time  For  Exception 467 

8.  VERDICT    469' 

9.  FINDINGS   OF  FACT 470 

10.  NEW  TRIAL.   471 

11.  WAIVER  IN  APPELLATE  PRACTICE 473 

A.  Waiver  Of  Right  To  Appeal — 

(1)  From   consent   judgments 476 

(2)  By  paying  judgment 477 

(3)  By  accepting  benefits  of  judgment 479 

B.  Notice  Of  Appeal 482 

1.  OBJECTIONS  TO  SPECIAL  JUDGE:— 
Sec.  407.  Many  statutes  make  provision  for  the  ap- 
pointment of  a  special  judge  in  the  event  of  the 
disqualification  of  the  regular  judge  or  of  his  in- 
ability to  act.  Such  special  judge  is  one  who  takes 
the  place  of  the  regular  judge  under  a  temporary 
appointment  for  a  particular  purpose  and  derives 
his  power  to  act  solely  through  statutory  provision, 
for  there  is  no  inherent  power  in  courts  or  a  judge 
thereof  to  delegate  such  authority  to  another.  If 
there  is  no  law  authorizing  or  assuming  to  authorize 
the  appointment  of  a  special  judge,  any  attempted 
appointment  and  any  acts  thereunder  are  void  and 
of  no  binding  effect55.  And  it  has  been  said  that 
even  consent  or  agreement  of  parties  to  an  action 


55.     Smith  v.  Haworth,  53  Mo.  88. 
State  v.  Fritz,  27  La.  Ann.  689. 
Hoagland  v.  Creed,  81  111.  506. 


402  THE  LAW  OF  WAIVER. 

cannot  give  validity  to  the  acts  of  one  assuming,  un- 
der such  circumstances,  the  functions  of  a  judge50. 
Where  there  is  an  absolute  absence  of  statutory  au- 
thority therefor,  the  record  itself  shows  that  the 
person  assuming  to  act  was  without  authority  to  do 
so,  that  his  acts  were  invalid,  and  they  may  be  taken 
advantage  of  at  any  stage  of  the  proceeding.  But 
where  the  record  does  not  show  upon  its  face  objec- 
tions to  the  judge  so  assuming  to  act,  such  objec- 
tions must  be  made  specifically  by  the  party  entitled 
to  do  so.  And  the  principle  ramifying  the  whole 
field  of  the  law,  that  objections  are  to  be  made  at 
the  first  opportunity  or  are  to  be  deemed  waived,  is 
applicable  here.  Therefore,  objections  to  the  com- 
petency of  a  special  judge  must  be  made  with  rea- 
sonable promptitude  or  they  will  be  held  waived57. 
The  objections,  it  is  said,  must  be  made  before 
trial58,  and  this  is  true  in  a  certain  sense.  But  the 
law  does  not  attempt  to  require  an  impossibility;  so 
that  a  party,  before  he  can  be  deprived  of  his  right 
to  object,  must  have  knowledge  of  that  right  and  of 
the  grounds  of  the  objection,  or  he  must  be  so  situ- 
ated that  by  the  exercise  of  reasonable  care  and 
diligence  he  could  have  ascertained  them. 
2.  OBJECTIONS  TO  JURORS : 

A.     PANEL:— Sec.  408.     There  are  many  de- 
fects or  irregularities  in  the  formation  of  a  jury 

56.     HylUs  v.  State,  4>5  Ark.  478. 

Haverly  Co.  v.  Howcutt,  6  Colo.  574. 

But  see:  Radford  Co.  v.  East  Tenn.  Co.,  21  S.  W.  S29. 
§7.     Grant  v.  Holmes,   75  Mo.   109. 

State  v.  Whitney,  7  Oreg.  386. 

State  v.  Sachs,  3  Wash.  691 ;  29  Pac.  446. 

Stears  v.  Wright,  51  N.  H.  600. 

State  v.  Voorhies,  41  La.  Ann.  567;  6  So.  826. 

Bowen  v.  Swander,  121  Ind.  164;  22  N.  B.  726. 
tt.     Dolan  v.  Church,  1  Wyo.  187. 

State  v.  Qreenwade,  72  Mo.  298. 


CIVIL  PRACTICE.  403 

which  will  render  their  acts  invalid,  provided  they 
be  taken  advantage  of  at  the  proper  time  and  in  the 
proper  manner  by  him  who  is  entitled  to  object. 
The  court  will  not  protect  a  party  in  such  case  un- 
less he  assert  his  rights.  So,  if  no  objection  be  taken 
to  the  empaneling  of  a  jury,  it  is  presumed  that  both 
parties  are  satisfied  with  the  panel  chosen  and  the 
manner  in  which  they  are  chosen,  and  neither  party 
can  be  heard  to  object  after  the  case  has  proceeded 
on  such  presumption59.  So,  it  is  held  that  a  chal- 
lenge to  the  polls  generally  is  a  waiver  of  the  right 
to  challenge  the  array60. 

Sec.  409.  The  same  presumption  that  attaches 
to  the  regularity  and  sufficiency  of  the  jury  panel 
applies  when  objection  could  be  made  to  individual 
jurors.  Each  party  to  an  action  has  the  right  to 
fully  examine  each  juror  offered  as  an  arbiter  of 
his  rights,  and  if  either  accepts  the  jury  without 
such  examination  his  right  to  object  is  thereby 
waived,  and  the  qualifications  of  the  jurymen  are 
presumed  to  be  sufficient  and  satisfactory61.  And 
the  challenge  for  all  causes  of  disqualification  of  a 
juror  known  to  a  party,  or  which  by  diligence  and 
reasonable  care  it  is  possible  to  learn,  must  be  made 


59.  Queenan  v.  Territory,  11  Okla.  261 ;  71  Pac.  218 ;  affirmed  In  190 

U.  S.  548;  23  Sup.  Ct.  R.  762;  47  L.  Ed.  1175. 
Hardenburgh  v.  Crary,  15  How.  Pr.  307. 

60.  Mueller  v.   Rebham,   94  111.   142. 
Watkins  v.  Weaver,  10  Johns.  107   (N.  T.) 

See:     Weeping  Water  Co.  v.  Haldeman,  35  Neb.  139;   52  N.  W. 

892. 

«1.     Tilton  v.  Kimball,   52  Me.   500. 
Wassum  v.  Feeney,  121  Mass.  93. 
Lane  v.  Scoville,  16  Kans.   402. 
Faville  v.  Sheehan,  68  la,  241 ;  26  N.  W.  131. 
Daniels  v.  Lowell,  139  Mass.  56  ;  29  N.  E.  222. 
Manion  v.  Flynn,  39  Conn.  330. 
Morrison  v.  McKinnon,  12  Fla.  552. 


404  THE  LAW  OF  WAIVER. 

before  trial  and  at  the  earliest  opportunity02,  or 
otherwise  the  right  of  objection  will  be  held  waived. 

Sec.  410.  A  divergence  of  opinion  exists  among 
the  authorities  as  to  whether  the  disqualification  of 
a  juror  which  is  unknown  to  a  party  until  after  trial 
and  verdict  is  sufficient  to  entitle  him  to  a  new  trial 
when  such  disqualification  is  learned.  It  is  said  by 
one  line  of  authorities  that  in  such  case  a  new  trial 
should  be  granted63,  and  others  say  that  a  new  trial 
should  be  allowed  only  when  the  disqualification  re- 
lates to  the  legal  competency  of  the  juror  and  not  to 
mere  bias  or  prejudice64.  But  if  a  juror  has  con- 
cealed his  prejudice  or  partiality  or  interest  in  the 
cause,  the  verdict  should  be  set  aside  upon  a  sub- 
sequent discovery  of  the  fact65.  The  true  rule  to  be 
applied  in  such  cases,  it  seems  to  us,  is  that  if  a 
party  has  used  due  diligence  and  care  to  ascertain 
the  competency  of  a  juror  and  has  been  deceived  or 
has  failed  to  discover  the  disqualifying  facts,  the 
verdict  should  not  be  allowed  to  stand  to  his  prej- 
udice. A  waiver  of  the  grounds  of  objection  could 
not  be  held  against  him,  for  a  party  can  waive  no 
right  of  which  he  is  ignorant,  and  after  he  has 
availed  himself  of  all  the  means  provided  by  law  for 
ascertaining  the  competency  of  a  juror,  he  has  done 
all  that  could  reasonably  be  expected  of  him. 

Sec.  411.  If  a  challenge  for  cause  has  been  in- 
terposed and  overruled,  it  is  held  that  an  exception 
to  such  ruling  is  waived  if  the  party  subsequently, 

62.  Johns  v.  Hodges,  60  Md.  215 ;  40  A.  R.  722. 

63.  Lafayette  Co.  v.  New  Albany  Co.,  13  Ind.  90. 
Hardy  v.  Sprowle,  32  Me.  310. 

Williams  v.  McGrade,  18  Minn.  82. 
Essex  v.  McPherson,  64  111.  349. 

64.  See:     Wassum  v.  Feeney,  121  Mass.  93. 
66.     Jeffries  v.  Randall,  14  Mass.  205. 

Childress  v.  Ford,  18  Miss.  25. 


CIVIL  PRACTICE.  405 

cause  the  juror  to  be  excluded  under  a  peremptory 
challenge66.  And  any  error  in  such  ruling  is  un- 
doubtedly unavailing  on  appeal  if  the  juror  be  ac- 
cepted by  the  objecting  party  without  having  ex- 
hausted all  of  his  peremptory  challenges67,  but  it  is 
otherwise  if  all  of  his  peremptory  challenges  have 
been  exhausted  and  he  is  thus  compelled  to  accept 
the  juror  objected  to68.  But  if  a  challenge  to  the 
array  has  been  overruled,  an  exception  to  such  rul- 
ing is  not  waived  by  subsequently  challenging  in- 
dividual jurors69. 

3.  EIGHT  TO  JUBYTKIAL:— Sec.  412.  The 
right  to  have  a  jury  try  issues  of  fact  is  in  many 
cases  guaranteed  to  parties  by  constitutional  pro- 
vision, and  such  right  cannot  be  taken  away  except 
by  consent  of  the  party  entitled  to  it.  And  such 
jury,  unless  otherwise  provided  or  agreed  upon, 
must  consist  of  twelve  men.  But  the  right  to  a  jury 
is  personal  to  the  parties  and  may  be  waived  by 
them,  and  such  waiver  may  be  either  express  or  im- 
plied70. And  while  it  is  true  as  a  general  proposi- 
tion that  a  waiver  of  a  jury  once  made  is  good  for 
all  time71,  yet  it  has  been  held  that  where  a  jury  was 
waived  as  to  issues  formed  at  the  time  of  waiver,  it 
could  not  be  extended  so  as  to  apply  where  different 

66.  Burt  v.  Panjand,  99  U.  S.  180. 
Elliott's  App.  Pr.  Art.  649. 

67.  St.  Louis  Ry.  Co.  v.  Lux,  63  I1L  623. 
State  v.  Elliott,  45  la.  486. 

68.  Robinson  v.  Randall,  82  111.  521. 
Hubbard  v.  Rutledge,   57  Miss.  7. 

69.  Clinton  v.  Englebrecht,  13  Wall.  434. 

70.  Love  v.  Bryson,  57  Ark.  589  ;   22  S.  W.  341. 
Carr  v.  Sullivan,  68  Hun  246. 

Smith  v.  Barclay,  55  N.  W.  827  (Minn.) 

Bonewitz  v.  Bonewltz,  50  Oh.  St.  373 ;  34  N.  B.  332 ;  40  A.  S.  R. 

671. 
Petri  v.  Bank,  84  Tex.  212 ;  18  S.  W.  762. 

71.  Marsh  v.  Brown,  57  N.  H.  173. 


406  THE  LAW  OP  WAIVER. 

issues  were  afterwards  made  on  new  pleadings72. 
But  even  where  a  jury  has  been  waived  by  the  par- 
ties, the  waiver  is  not  binding  on  the  court  and  it 
may  call  a  jury73. 

Sec.  413.  Many  statutes  provide  means  in  which 
a  jury  may  be  waived,  and  the  modes  prescribed 
must  be  followed74.  But  aside  from  such  statutory 
provision,  a  variety  of  conditions  have  been  held  suf- 
ficient to  constitute  a  waiver.  Thus,  submitting  to 
a  reference  will  produce  this  result75 ;  and  where  by 
consent  of  counsel  the  case  is  set  down  for  trial  with- 
out a  jury  and  the  trial  actually  begins,  it  is  a  waiver 
of  a  jury  trial76.  And  a  defendant  by  not  appear- 
ing at  the  time  a  case  is  called  for  trial  waives  the 
right  to  a  trial  by  jury  in  his  absence77.  So,  in  a 
mandamus  proceeding  to  try  title  to  a  county  office, 
where  the  defendants  submitted  the  evidence  on 
which  they  acted  to  the  court,  asking  the  court  to 
inspect  the  same,  such  constitutes  a  waiver  of  a  jury 
trial,  assuming  that  a  jury  could  be  had  in  such  a 
case78.  And  in  some  instances  the  silence  of  a  party 
or  his  failure  to  demand  a  jury  has  been  held  a 
waiver  of  his  right  to  a  jury  trial79.  Thus,  a  de- 
fendant waives  his  right  to  a  trial  by  jury  where, 


72.  McGeah  v.  Nordberg,  65  N.  W.  117   (Minn.) 

73.  Fleming  v.  Wilson,   39  Wash.   106;    80  Pac.   1104. 

74.  Swasey  v.  Adair,  88  Cal.  179 ;  25  Pac.  1119. 

75.  Lee  v.  Tillottson,  24  Wend.  337 ;  35  A.  D.  624. 

76.  Polack  v.  Gurnee,  66  Cal.  266;  5  Pac.  229;  610. 

77.  Weems  v.  McDavitt,  49  Kans.  260 ;  30  Pac.  481. 
Green  v.  Bulkley,  23  Kans.  131. 

Even  where  he  has  before  demanded  a  jury :  McGuIre  v.  Drew, 
83  Cal.  225  ;  23  Pac.  312. 

78.  Territory  v.  County  Commsrs.,  7  N.  Mex.  56-8;  37  Pac.  1116. 

79.  Haley  v.  Bank,  21  Nev.  127  ;  26  Pac,  64 ;  12  L.  R.  A.  815. 
Baird  v.  Mayor,  74  N.  T.  382. 

Sheets  v.  Bray,  125  Ind.  33 ;  24  N.  E.  357. 
Grant  v.  Hughes,  96  N.  Car.  177 ;  2  S.  E.  339. 
Pearce  v.  Albright,  12  N.  Mex.  202 ;  76  Pac.  286. 


CIVIL  PRACTICE.  407 

after  the  withdrawal  of  the  plaintiff's  request  for  a 
jury,  and  after  the  clerk  has  taken  the  case  from  the 
list  of  cases  for  trial  by  jury  and  has  placed  it  on 
the  waived-jury  list,  though  without  any  special  or- 
der of  court,  he  makes  no  complaint  and  no  effort 
to  have  the  case  re-transferred  to  the  jury  list  until 
the  time  when  the  case  is  actually  reached  for  trial80. 
And  an  agreement  that  the  pending  action  shall 
abide  the  result  of  another  action  constitutes  a  bind- 
ing waiver  of  the  right  to  try  the  pending  action  to 
a  jury81.  The  parties  entered  into  an  agreement  to 
relinquish  their  constitutional  right  to  a  jury  trial. 
It  was  held  that  such  agreement  was  valid  and  bind- 
ing and  even  broader  than  a  simple  waiver  in  that 
it  was  a  contract  on  a  sufficient  consideration  to  the 
performance  of  which  both  could  be  held82. 

A.  NUMBER  OF  JURORS:— Sec.  414.  The 
early  cases  seem  to  have  denied  to  parties  to  civil 
actions  the  power  to  waive  the  right  to  a  full  jury 
and  to  consent  to  a  jury  of  fewer  than  twelve. 
Thus,  it  was  said  that  the  common  law  right  of  trial 
by  a  jury  of  twelve  could  not  be  waived  either  di- 
rectly or  indirectly,  and  if  a  trial  by  jury  was  de- 
manded and  refused,  the  right  was  not  waived  by 
the  subsequent  trial  by  the  court83.  But  this  doc- 
trine has  long  since  been  departed  from,  and  it  is 
now  almost  universally  held  that  the  parties  may 
waive  the  right  to  trial  by  a  jury  of  twelve  or  any 
other  number  that  may  be  provided  by  law84.  But 

80.  Stevens  v.  McDonald,  173  Mass.  382;   53  N.    E.    885;    73    A.    8. 

R.  300. 

81.  Cuiran'ings  v.  Smith,  50  Me.  568  ;  79  A.  D.  629. 

82.  Lanahan  v.  Heaver,  77  Md.  605  ;  26  Atl.  866  ;  20  L.  R.  A.  769. 

83.  Norval  v.  Rice,  2  Wls.  22,  followed  in: 
May  v.  Milwaukee  Co.,  3  Wls.  219. 

84.  Scott  v.  Russell,  39  Mo.  407. 
Marlin  v.   Stockbridge,   14  Tex.   165. 


408  THE  LAW  OF  WAIVER. 

the  parties  are  absolutely  entitled  to  have  their 
cause  tried  by  the  full  number  and  nothing  short  of 
their  consent  can  deprive  them  of  this  right85 ;  and 
it  is  said  that  the  consent  must  be  recorded  or  the 
judgment  will  be  set  aside86.  And  a  waiver  cannot 
be  inferred  merely  from  the  absence  of  the  adverse 
party,  although  his  absence  is  considered  a  consent 
that  the  case  be  tried  to  the  court87.  So,  during  the 
progress  of  the  trial  the  court  has  no  right  to  with- 
draw one  of  the  jurors  and  proceed  with  those  re- 
maining, without  the  consent  of  the  parties88,  but 
it  is  held  a  waiver  where  the  parties  consent  to  the 
withdrawal89. 

Sec.  415.  However,  even  though  the  record  fail 
to  show  a  submission  by  consent  of  parties  to  a  jury 
of  eleven,  still  the  right  to  a  full  jury  may  be  waived 
by  failure  to  assign  the  matter  complained  of  as 
grounds  for  a  new  trial90.  And  where  the  objection 
is  first  made  upon  appeal,  it  is  conclusively  pre- 
sumed that  the  parties  waived  their  right  to  the 
full  number  of  jurors91.  But  aside  from  technical 
considerations,  the  right  to  a  full  number  of  jurors 
is  an  individual  right  within  individual  control  and 
may  be  parted  with  at  pleasure,  and  an  irrevocable 
waiver  of  the  right  occurs  where  a  party  consents 
to  a  trial  by  a  fewer  number  than  that  regularly 
provided  for92.  Yet  in  the  absence  of  such  waiver, 

85.  Bishop  v.  Mugler,  33  Kans.  146 ;  5  Pac.  756. 
Van  Sickle  v.  Kellogg,  19  Mich.  49. 

86.  Brown  v.  Hannibal  Co.,  37  Mo.  298. 

87.  Gillesple  v.  Benson,  18  Cal.  409. 

88.  Cloud  Co.  Com.  v.  Morgan,  7  Kans.  App.  213 ;  52  Pac.  896. 

89.  Tram  Lbr.  Co.  v.  Hancock,  70  Tex.  312 ;  7  S.  W.  724. 

90.  Mitchell  v.  Stevens,  23  Ind.  466. 

91.  Martin  v.  Stockridge,  14  Tex.  165. 

92.  Clague  v.  Hodgson,  16  Minn.  329. 
Roach  v.  Blakey,  89  Va.  767;  17  S.  E.  228. 

City  of  Huron  v.  Carter,  5  S.  Dak.  4 ;  57  N.  W.  947. 
Rhode*  v.  Mattox,  135  Ind.  372;  34  N.  E.  326;  35  N.  E.  11. 


CIVIL  PRACTICE.  409 

a  defendant  is  not  to  be  held  responsible  for  the 
right  construction  of  the  jury  in  point  of  numbers, 
nor  for  the  fault  of  the  proper  officers  in  that  re- 
spect93. 

4.    WITNESSES— 

A.  OATH: — Sec.  416.  It  is  required  by  law 
and  by  rules  of  practice  that  a  witness  shall  first  be 
sworn  to  tell  the  truth,  the  whole  truth  and  nothing 
but  the  truth  before  he  can  be  interrogated  concern- 
ing the  matters  at  issue  in  the  pending  case.  It  is 
the  duty  of  the  party  calling  a  witness  to  see  that 
this  formality  of  qualifying  the  witness  is  gone 
through  with.  But  a  failure  in  this  respect  is  not 
necessarily  fatal  to  any  rights  involved  in  the  ac- 
tion, for  if  the  opposite  party  permit  the  witness  to 
proceed  with  his  testimony  without  raising  objec- 
tion when  he  could  have  done  so,  the  irregularity 
will  be  waived  and  the  testimony  allowed  to  stand 
as  if  the  oath  had  been  duly  administered94.  And 
it  is  equally  true  that  if  a  party  examine  a  witness 
knowing  that  the  latter  has  not  been  sworn,  yet 
make  no  objection  on  that  account,  the  failure  in  ad- 
ministering the  oath  is  waived;  for  the  party  must 
object  at  the  earliest  possible  moment.  And  this 
rule  applies  whether  the  witness  be  present  testify- 
ing in  court  or  his  testimony  be  taken  by  deposi- 
tion. And  where  parties  taking  a  deposition  failed 
to  carry  out  a  stipulation  as  to  the  swearing  of  a 
witness  in  a  manner  not  required  by  law,  it  was 
held  not  to  be  ground  for  suppressing  the  deposi- 
tion95. 

93.  Cowles  v.  Buckman,  6  la.  161. 

94.  Trammell  Co.  v.  Mount,    68    Tex.  210;    4    S.    W.    377;    2    A.    S. 

R.  479. 

95.  Knapp  v.  Am.  Shoe  Co.,  63  Kans.  698;  66  Pac.  996. 


410  THE  LAW  OF  WAIVER. 

B.  DEPOSITIONS:— Sec.  417.  Statutes  dif- 
fering in  minutia  as  to  the  taking  of  depositions  of 
witnesses  exist  in  the  various  states,  and  in  the  es- 
sential requirements  these  statutes  are  similar. 
Every  deposition  must  be  taken  upon  some  sort  of 
notice  to  the  opposite  party,  and  unless  such  notice 
be  given,  the  deposition  may  be  suppressed  upon 
proper  application.  But  after  defective  or  insuffi- 
cient notice,  a  party  waives  the  defects  by  appear- 
ing and  participating  in  the  taking  of  the  deposi- 
tion96. And  if  he  files  cross-interrogatories  and 
participates  in  the  taking  of  the  deposition,  he 
waives  any  objection  to  the  commission  under  which 
it  was  taken97.  As  a  general  proposition,  appearing 
and  taking  part  in  the  examination  of  the  witness 
is  a  waiver  of  all  formal  objections  that  might  be 
remedied  by  amendment  or  re-taking  of  the  deposi- 
tion98. Thus,  preliminary  proof  that  the  witness 
resided  out  of  the  county  where  the  cause  was  be- 
ing tried  was  held  waived  where  the  party  against 
whom  the  deposition  was  taken  expressed  himself 
as  satisfied  with  a  statement  from  opposing  counsel 
as  to  the  non-residence  of  the  witness00.  And  an 
objection  that  the  certificate  does  not  show  that  the 
deposition  was  taken  before  the  one  to  whom  the 
commission  was  issued,  nor  in  the  official  capacity 
designated  therein,  is  waived  unless  taken  by  mo- 


96.  Kelly  v.  Ning  Tung  Co.,  2  Cal.  App.   460  ;   84  Pac.  821. 

97.  Palatine    Ins.    Co.    v.  Merc.    Co.,    13    New    Mex.    241;    82    Pac. 

363. 

98.  Shutte  v.  Thompson,  15  Wall.  151. 

Waldron  v.  St.  Paul.  33  Minn.  87 ;  22  N.  W.  4. 
Quadras  v.  Webster,   11  La.  Ann.   203. 
.Goodfellow  v..  Landis,  36  Mo.   168. 
Jones  v.  Love,  9  Cal.  68. 
Hobart  v.  Jones,  5  Wash.  385;  31  Pac.  878. 

99.  Estate  of  Learned,  70  Cal.  140 ;  11  Pac.  587. 


CIVIL  PRACTICE.  411 

tion  to  suppress  made  prior  to  trial100.  And  if  a 
motion  to  suppress  be  made,  but  no  ruling  thereon 
had,  it  will  be  presumed  that  the  objection  was 
waived1. 

Sec.  418.  It  is  the  further  general  rule  that  ob- 
jections to  the  manner  and  form  of  taking  a  depo- 
sition must  be  made  at  the  time  it  is  taken  or  they 
will  be  held  waived.  Such  objections  cannot  be 
made  for  the  first  time  at  the  trial2.  And  it  is  the 
same  if  objection  be  made  to  improper  questions3. 
But  objections  going  to  the  competency  and  rele- 
vancy of  the  evidence,  if  not  known  and  not  dis- 
closed by  the  deposition,  may  generally  be  made  at 
the  trial4. 

C.  COMPETENCY:— Sec.  419.  Sometimes  it 
appears  before  the  examination-in-chief  that  a  wit- 
ness is  incompetent  to  testify  in  the  particular  case. 
In  such  event  the  party  entitled  to  object  to  such 
witness  must  make  his  objection  promptly  or  he  will 
be  deemed  to  have  waived  it ;  for  in  this  connection, 
as  in  all  other  cases,  it  is  the  rule  that  an  objection 


100.     Sugar  Pine  Co.  v.  Garrett,  28  Oreg.  168 ;  42  Pac.  129. 
Murray  v.  Larabie,  8  Mont.  208 ;  19  Pac.  574. 

1.  Garvin  v.  Luttrell,  10  Humph.  16   (Tenn.) 
Faut  v.  Miller,  17  Gratt.  187   (Va.) 

Hanks  v.  Van  Garder,  59  la.  179 ;  13  N.  W.  103. 
McGinnis  v.  Gabe,  78  Ind.   457. 

2.  Oliver  v.  Oregon  Sugar  Co.,  45  Oreg.  77;  76  Pac.  1086. 
Inter-Nat.  Ry.  Co.  v.  Prince,  77  Tex.  560 ;  19  A.  S.  R.  795. 
Bent  Otero    Co.  v.  Whitehead,  25    Colo.  354 ;    54    Pac.  1023 ;  Tl 

A.  S.  R.  140. 

Holman  v.  Bachus,  73  Mo.  49. 
Uhle  v.  Burnham,  44  Fed.  729. 
Akers  v.  Demon d,  103  Mass.  318. 
Bell  v.  Jamison,  102  Mo.  71 ;  14  S.  W.  714. 

3.  Ala.  Nat.  Bank  v.  Rivers,   116  Ala.   1;   22   So.   580;   67  A.  S,  R. 

95. 

4.  Leavitt  v.  Baker,  82  Me.  26 ;  19  Atl.  86. 
Myers  v.  Murphy,  60  Md.  282. 

Tays  v.  Carr.  37  Kans.  141  :  14  Pac.  456. 


412  THE  LAW  OF  WAIVER. 

should  be  made  at  the  first  opportunity,  a  ruling  ob- 
tained, and  an  exception  properly  saved,  or  the  pro- 
ceedings will  conclusively  be  presumed  to  have  been 
satisfactory  to  all  parties5.  But  it  perhaps  more 
frequently  occurs  that  the  incompetency  of  the  wit- 
ness does  not  become  apparent  until  after  his  ex- 
amination has  been  proceeded  with.  In  cases  of 
this  kind,  of  course  a  party  cannot  object  until  he 
knows  of  his  right  to  do  so,  but  when  it  comes  to  his 
knowledge  he  must  act  promptly  in  presenting  his 
objections  or  he  will  be  held  to  have  foregone  his 
right  to  question  the  competency  of  the  witness6. 
A  party  calling  a  witness  in  support  of  his  own  case 
cannot  object  to  his  competency7,  and  it  is  said, 
also,  that  he  waives  the  right  to  object  to  the  credi- 
bility of  the  witness8.  Such  waiver,  once  made,  is 
good  for  the  entire  trial  and  cannot  be  revoked9. 
But  a  party  is  only  required  to  make  his  objection 
at  the  proper  time  and  to  save  an  exception  to  the 
court's  ruling.  His  right  to  later  insist  upon  the 
objection  is  not  waived  by  proceeding  with  the 
cross-examination  of  the  witness  nor  by  introducing 
evidence  to  contradict  the  testimony10. 

D.  SELF-CRIMINATION:— Sec.  420.  The 
federal  constitution  and  the  constitutions  of  most 
of  the  states  provide  that  no  person  can  be  com- 


5.  See:  Lewis  v.  Morse,  20  Conn.  211. 
Groshom  v.  Thomas,  20  Md.  234. 
Patterson  v.  Wallace,  44  Pa.  St.  88. 
Stuart  v.  Lake,  33  Me.  87. 

Weidenhoft  v.  Prim.  16  Wyo.  340;  94  Pac.  458. 

6.  Seip  v.  Torch,  52  Pa.  St.  210. 

Stockton  v.  Demuth,  7  Watts  39  ;  32  A.  D.  735. 
T.     Stockton  v.  Demuth,  supra. 

8.  Mattloe  v.  Allen,  33  Barb.  546. 

9.  Beall  v.  Lynn,  6  Harr.  &  Johns.  336   (Md.) 
10.     Boylan  v.  Meeker,  4  Dutch.  274   (N.  J.) 

Carpenter  v.  Glnder,  1  Wis.  243 


CIVIL  PRACTICE.  413 

pelled,  as  a  witness,  to  answer  any  question  if  the 
answer  would  tend  to  expose  Mm  to  a  criminal 
charge  or  any  kind  of  punishment.  It  may  be  noted 
that  the  answer  may  be  refused  if  it  would  tend  to 
expose  the  witness  to  a  criminal  prosecution,  the 
rule  not  being  confined  to  matters  which  directly 
incriminate  him.  And  a  court  ought  never  to  com- 
pel a  witness  to  give  an  answer  which  discloses  a 
fact  that  would  form  a  necessary  and  essential  part 
of  a  crime  which  is  punishable  by  law11.  Whether 
the  privilege  extends  to  protecting  a  witness  from 
answers  that  would  disgrace  him  is  a  matter  upon 
which  there  is  still  some  divergence  of  opinion.  But 
the  weight  of  authority  is  that  if  the  answer  would 
have  a  tendency  to  disgrace  him,  and  the  proposed 
testimony  be  of  materiality  to  the  case,  he  may  be 
required  to  answer,  but  that  he  may  invoke  the  ben- 
efit of  the  privilege  if  the  answer  can  have  no  effect 
on  the  case12.  And  we  think  the  holding  of  most 
courts  is  to  the  same  effect  where  the  answer  not 
only  has  a  tendency,  but  is  sure  to  disgrace  the  wit- 
ness13; although  an  opposite  rule  is  adhered  to  by 
some  courts14. 

Sec.  421.  But  the  question  what  the  witness  is 
privileged  from,  what  will  criminate  him,  who  de- 
termines the  character  of  the  answer,  and  questions 
of  like  character  are  not  matters  which  we  are  to 
discuss  extensively.  It  is  our  purpose  to  consider 
the  ways  and  instances  in  which  a  witness  by  his 

11.  1   Burr's  Trial,   244,  per  Chief  Justice  Marshall. 
Counselman  v.  Hitchcock,  142  U.  S.   547. 

12.  Brown  v.  Walker,  161  U.  S.  591 ;  and  70  Fed.  46. 

13.  Jennings  v.  Prentice,  39  Mich.  421. 
People  v.  Rector,  19  Wend.  569. 
Nioline  Co.  v.  Preston,  39  111.  App.  358. 

14.  U.  S.  v.  James,  60  Fed.  257. 


414  THE  LAW  OF  WAIVER. 

own  conduct  deprives  himself  of  the  protection  af- 
forded by  the  privilege.  And  to  begin  with,  it  is 
well  to  note  that  this  privilege  of  refusing  to  an- 
swer questions  of  a  nature  incriminating  is  one  that 
is  merely  personal  to  the  witness  and  he  alone  can 
claim  its  protection.  The  rules  regulating  the 
waiver  of  this  privilege  are  the  same  whether  the 
witness  be  testifying  in  a  civil  action  or  in  a  crim- 
inal prosecution,  except  as  to  the  defendant  him- 
self in  the  latter  case. 

(1)  TIME  TO  CLAIM  PEIVILEGE :— Sec. 
422.  Though  there  is  some  conflict  of  authority, 
the  better  doctrine  is  that  a  witness  must  claim  the 
privilege  of  his  exemption  from  answering  at  the 
threshold  of  the  examination;  it  being  said  that  he 
cannot  wait  and  answer  a  part  and  then  refuse  to 
answer  other  questions  legitimate  to  a  cross-exam- 
ination. If  he  voluntarily  states  a  part  of  the 
testimony,  he  waives  his  right  and  cannot  later 
stand  on  his  privilege15.  And  while  there  is  author- 
ity supporting  the  doctrine  that  a  witness  may  in 
his  direct  examination  stop  at  any  point  he  may  see 
fit  and  claim  his  privilege,  after  which  he  cannot 
be  cross-examined  touching  any  point  not  men- 
tioned in  the  direct  examination16,  still,  whether  or 
not  it  contravenes  the  general  rules  regulating 
cross-examinations,  the  trend  and  holding  of  mod- 
ern authorities  support  the  rule  that  a  witness  who, 

IS.     Ex  Parte,  Park,  37  Tex.  Cr.  R.  590;  66  A.  S.  R.  835,  citing: 

Rapalje,  Witnesses,   Sec.   269. 

Wharton's  Grim.  Evidence,  Sec.  470. 

State  v.  Blake,  25  Me.  350. 

Com.  v.  Price,  10  Gray  472;  71  A.  D.  668. 

People  v.  Freshour,  55  Cal.  375. 

Connors  v.  People.  50  N.  Y.  240. 

State  v.  K.,  4  N.  H.  562. 
1«.     Cooley's  Const.  Llm.  6th  Ed.  384. 


CIVIL  PRACTICE.  415 

in  his  direct  examination,  voluntarily,  or  without 
objection  opens  up  an  account  of  a  transaction,  will, 
on  cross-examination,  be  compelled  to  complete  the 
narrative;  and  that  he  will  not  be  allowed  to  state 
a  fact  and  afterwards  refuse  to  give  the  details17. 
In  fact,  the  time  in  which  this  privilege  may  be 
claimed  is  one  of  the  distinguishing  rights  between 
an  ordinary  witness  and  a  defendant  in  a  criminal 
prosecution  who  takes  the  stand  in  his  own  behalf; 
for  the  former  may  testify  in  the  case  and  then  re- 
fuse to  answer  an  incriminating  question  at  the 
time  it  is  asked,  but  the  latter,  by  the  mere  fact  of 
taking  the  stand,  produces  a  complete  waiver  of  the 
privilege  so  far  as  it  relates  to  facts  relevant  to  the 
case18. 

(2)     PBIVILEGE  MUST  BE  CLAIMED  :- 

Sec.  423.  The  protection  afforded  by  the  privilege 
extended  to  witnesses  to  refuse  to  answer  questions 
of  an  incriminating  character  is  not  self-operative. 
It  is  not  a  matter  that  concerns  any  but  the  witness 
himself,  or,  in  other  words,  it  is  entirely  personal 
to  him.  If  he  would  avail  himself  of  its  benefits, 
he  must  claim  them  properly,  for  the  rule  is  general 
that  unless  he  claim  the  privilege  in  time  he  will  be 


17.  Rapalje  on  Law  of  Witnesses,  Sec.  443. 
Chamberlain  v.  Willson,  12  Vt.  491. 
Alderman  v.  People,  4  Mich.  414. 

State  v.  Nichols,  29  Minn.  357;  13  N.  W.  153. 
Este  v.  Wilshire,  44  Oh.  St.  636  ;  10  N.  E.  677. 
Com.  v.  Pratt,  126  Mass.  462. 

18.  State  v.  Kent,  5  N.  Dak.   516;   67  N.  W.   1052. 
Coburn  v.  O'Dell,  30  N.  H.  540. 

State  v.  Duncan,  7  Wash.  336;  35  Pac.  117;  38  A.  S.  R.  888. 

State  v.  Murphy,  45  La.  Ann.  958  ;  13  So.  229. 

State  v.  Clinton,  67  Mo.  380  ;  29  A.  R.  506. 

State  v.  Allen,  107  N.  Car.  805  ;   11  S.  E.  1016. 

State  v.  Fay,  43  la.  651. 

Tbomas  v.  State,  103  Ind.  419 ;  2  N.  E.  808. 


416  THE  LAW  OF  WAIVER. 

deemed  to  have  waived  it  and  exposed  himself  to  a 
complete  examination  and  cross-examination  con- 
cerning the  criminating  matters.  And  while  the 
privilege  is  one  wholly  personal  to  the  witness,  and 
one  with  which  neither  party  has  anything  to  do,  it 
has  been  said  that  the  rnle  does  not  require  that  the 
witness  should  in  person  address  the  court  and 
claim  the  privilege19,  and  that  if  the  court  under- 
stands that  the  witness  claims  the  privilege,  it  is 
immaterial  whether  the  claim  be  made  in  person  or 
by  counsel20.  But  the  better  rule  is  adverse  to  these 
holdings  and  supported  by  most  authorities,  and 
under  it  the  witness  must  claim  his  privilege  in 
person  and  must  state  under  oath  that  the  answer 
to  the  proposed  question  will  tend  to  incriminate 
him21.  The  reason  for  the  last-named  rule  is  that 
if  the  witness  is  not  required  to  personally  claim 
the  privilege  under  oath,  there  is  no  admission 
which  tends  to  discredit  him,  and  the  real  benefit 
to  be  derived  by  the  party  examining  him  from 
such  a  discrediting  admission  is  very  largely  lost. 

(3)  EXTENT  OF  WAIVER:— Sec.  424. 
Some  question  has  arisen  as  to  how  far  the  waiver 
by  a  witness  of  the  privilege  of  refusing  to  testify 
shall  be  effective.  It  seems  well  settled  that  where 
a  witness  is  connected  with  several  distinct  trans- 


is.     People  v.  Brown,  72  N.  T.  B71 ;  28  A,  R.  183,  a  case  of  a  defend- 
ant as  a  witness  for  himself. 

20.  Clifton  v.  Granger,  86  la.  573 ;  53  N.  W.  316. 

21.  Wharton,  Evidence,  Sec.  535. 

State  v.  Kent,  5  N.  I>ak.  516 ;  67  N.  W.  1052. 

Roddy  v.  Flnnegan,  43  Md.  490. 

White  v.  State,  52  Miss.  216. 

People  v.  Relnhart,  39  Cal.  449. 

State  v.  Wentworth,  65  Me.  234;  20  A.  R.  688. 

State  v.  Butler,  47  S.  Car.  25 ;  24  S.  E.  991. 

Bradford  v.  People,  22  Colo.  157;  43  Pac.  1018. 

Burk  v.  Putnam,  113  la.  232;  84  N.  W.   1053;  86  A.  S.  R.  37*. 


CIVIL  PRACTICE.  417 

actions  which  tend  to  incriminate  him,  all  of  which 
are  material  to  the  issues  in  the  case,  he  does  not 
waive  his  privilege  of  refusing  to  testify  as  to  some 
of  the  incriminating  transaction  by  consenting  to 
testify  as  to  others.  But  he  waives  his  privilege  as 
to  such  transaction  in  so  far  as  the  inquiry  as  to 
them  is  within  the  proper  limits  of  cross-examina- 
tion22. A  specific  exemplification  of  the  rule  is 
found  in  a  case  where  a  witness  in  his  deposition 
testified  in  chief  to  the  execution  of  certain  notes, 
and  it  was  held  that  he  did  not  thereby  waive  his 
privilege  of  refusing  to  answer  on  cross-examina- 
tion whether  the  notes  were  respectively  in  the 
same  condition  at  the  time  he  was  testifying  as  they 
were  when  signed  and  delivered,  and  it  was  held 
error  in  such  case  to  strike  out  the  deposition  on 
the  ground  that  the  witness  had  by  so  answering 
in  chief  waived  his  privilege23. 

Sec.  425.  There  is  authority  for  the  proposi- 
tion that  if  a  witness  voluntarily  and  freely  testify 
before  a  grand  jury,  that  he  waives  his  privilege 
and  may  be  required  to  testify  fully  at  the  trial24. 
But  the  rule  is  not  well  supported  either  by  author- 
ity or  reason ;  for  the  grand  jury  investigations  are 
entirely  separate  and  disconnected  and  have  noth- 
ing to  do  with  the  court  as  far  as  the  witness  is 
concerned,  since  his  testimony  could  not  be  consid- 
ered as  a  continuous  statement25.  And  the  same  is 


22.     Evans  v.   O'Connor,   174  Mass.   287;    54  N.   E.   557;    75   A.   S.   R 

316. 

Low  v.  Mitchell,  18  Me.  372. 
28.     Lombard  v.  Mayberry,   24   Neb.   674;   40  N.  W.   271 ;   8  A.   S.  R. 

234. 

24.     fitate  v.  Van  Winkle,  80  la.  15  ;  45  N.  W.  388. 
26.     Temple  v.  Commonwealth,  75  Va.  892. 

People  v.  Lauder,  82  Mich.  109;  46  N.  W.  958. 


418  THE  LAW  OF  WAIVER. 

true  if  he  first  testify  at  a  coroner's  inquest26,  or 
if  he  waives  his  privilege  at  one  trial  and  claims  it 
at  a  second  trial  of  the  same  case27. 

SUB-DIVISION  2. 

TRIAL   PRACTICE. 

1.  IN  GENERAL:— Sec.  426.  In  the  trial  of 
all  cases  before  courts  of  justice,  either  with  or 
without  the  intervention  of  a  jury,  it  is  necessary, 
in  order  for  a  party  to  have  errors  alleged  by  him 
to  have  been  committed  by  the  trial  court  reviewed 
on  appeal,  that  he  should  have  objected  to  the  mat- 
ter alleged  as  error  and  excepted  to  the  ruling  of 
the  court.  The  objection  is  the  presentment  of  a 
point  upon  which  a  ruling  is  asked,  and  the  excep- 
tion is  an  objection  registered  against  the  ruling  of 
the  court.  Without  an  exception,  the  objection  is 
unavailing  in  the  appellate  court.  And  as  the  two 
are  so  closely  related  in  their  functions,  and  as  the 
rules  governing  them  apply  whether  the  trial  be  of 
a  civil  or  criminal  action,  the  treatment  of  the  two 
in  the  succeeding  sections  will  necessarily  be  inter- 
woven. 

Sec.  427.  It  is  elementary  that  the  point  to 
which  a  party  may  wish  to  object  must  be  raised  at 
the  trial  or  in  the  proceedings  in  the  court  below,  or 
it  cannot  be  taken  advantage  of  in  the  appellate 
court28.  Or,  otherwise  said  in  one  instance,  if  the 

26.  Cullen  v.  Commonwealth,  24  Gratt.    (Va.)   624. 

27.  Emery  v.  State,  101  Wls.  627  ;  78  N.  W.  145. 
Georgia  Ry.  Co.  v.  Lybrend,  99  Ga.  421;  27  S.  E.  794. 

28.  Hershey  v.  Institute,  15  Ark.  128. 
Spear  v.  Lomax,  42  Ala.  576. 

New  Orleans  v.  Congregation,  15  La.  Ann.  389. 

Scully  v.  Book,  3  Wash.  182;  28  Pac.  556. 

Dimmey  v.  Wheeling  Ry.  Co.,  27  W.  Va.  32 ;  35  A.  R.  292. 

Bunks  v.  Chapman,  11  Ky.  L.  R.  260. 

Benepe  v.  Wash,  38  Kans.  407;  16  Pac.  950. 

Laber  v.  Cooper,  7  Wall.  565  ;  19  L.  Ed.  151. 


CIVIL  PRACTICE.  419 

objection  be  to  the  introduction  of  evidence,  the 
proper  time  to  object  is  when  it  becomes  apparent 
that  error  will  be  committed  by  receiving  the  evi- 
dence, as  when  it  is  offered29,  or,  when  a  question  is 
asked  which  is  improper  or  calls  for  an  improper 
answer30 ;  and  that  an  exception  must  be  taken  at 
the  time  to  the  ruling  of  the  court31.  Some  states 
have  statutory  provisions  regulating  the  mode  and 
time  of  making  objections  and  taking  exceptions, 
but  the  rules  are  practically  the  same  as  in  those 
states  where  no  statutory  provision  exists.  And 
the  same  principles  obtain  whatever  be  the  matter 
objected  to,  the  rule  being  that  a  party  must  avail 
himself  of  his  rights  at  the  earliest  opportunity  or 
they  will  be  deemed  waived. 

2.     OBJECTIONS  TO  EVIDENCE: 
A.    ADMISSION- 

(1)  TIME  TO  OBJECT:— Sec.  428.  It  is  a 
rule  of  universal  application,  embracing  practically 
every  conceivable  objection  that  could  be  made  to 
evidence,  that,  in  order  to  obtain  any  advantage  of 
an  error  committed  by  the  trial  court,  an  objection 
must  be  made  at  the  time  the  evidence  is  offered  or 
it  will  be  held  waived ;  in  support  of  which  rule,  the 

29.  Perrot  v.  Shearer,  17  Mich.  48. 
Sharon  v.  Minneck,  6  Nev.  377. 
McKay  v.  Lane,  5  Fla.  268. 
Crump  v.  Starke,  23  Ark.  131. 

Shain  v.  Sullivan,  106  Cal.  208  ;   39  Pac.  606. 
Thomson  v.  Wilson,  26  la.  120. 

30.  Storms  v.  Lemon,  7  Ind.  App.  435  ;  34  N.  E.  644. 
Blake  v.  Broughton,  107  N.  Car.  220;  12  S.  E.  127. 
Duer  v.  Allen,  96  la.  36  ;  64  N.  W.  682. 

31.  Laird  v.  Upton,  8  N.  Mex.  409  ;  45  Pac.  1010. 
Lester  v.  Georgia  Co.,  90  Ga.  802  ;  17  S.  E.  113. 

Missouri  v.  Hope,  100  Mo.  347;  13  S.  W.  490;   8  L.  R.  A.  608. 
Hanna  v.  Maas,    122    U.   S.   24 ;   7    Sup.  Ct.  R.   1055 ;   30    L.   Ed. 

1117. 
Williams  v.  Thomas,  3  N.  M.-326;  9  Pac.  356. 


420  THE  LAW  OF  WAIVER. 

adjudicated  cases  are  numerically  like  unto  the  sands 
of  the  sea.  And  the  reason  upon  which  the  rule  is 
based  is  that  if  the  alleged  error  be  called  to  the 
attention  of  the  trial  court,  an  opportunity  will  thus 
be  given  for  its  correction,  the  expense  of  an  appeal, 
and  perhaps  the  annoyance  of  a  second  trial  averted. 
Therefore,  the  objection  will  be  too  late  if  made  for 
the  first  time  after  the  cause  has  gone  to  the  jury32, 
or  after  argument33,  or  after  verdict84,  or  on  a  mo- 
tion for  a  new  trial35,  or  on  appeal36,  and  in  either 
of  such  cases  it  is  deemed  waivecl. 

Sec.  429.  Thus,  if  parol  evidence  be  offered  in 
lieu  of  that  required  by  law  to  be  in  writing,  the  er- 
ror in  the  admission  of  such  evidence  is  waived  un- 
less objected  to  at  the  time  of  the  offer37.  And  the 
same  result  follows  where  the  evidence  introduced 
is  secondary38,  or  documentary  with  defects  as  to 
form  which  would  render  it  inadmissible39,  or  parol 
introduced  to  vary  the  terms  of  a  written  instru- 

32.     Hummel  v.  State,  17  Oh.  St.  628. 

38.     Farmers  Bank  v.  Greene,  43  U.  S.  App.  446 ;  74  Fed.  439 ;  20  C. 
C.  A.  500. 

34.  Arons  v.  Smlt,  173  Pa.  St.  630;  34  Atl.  234. 
Crump  v.  Starke,  23  Ark.  131. 

Barton  v.  Gray,  57  Mich.  622  ;  24  N.  W.  638. 

35.  Cook  v.  L/igon,  54  Miss.  368. 

Feidler  v.  Motz,   42   Kana   519;   22  Pac.   561. 
State  v.  Peak,  85  Mo.  190. 
Holten  v.  Lake  Co.,  55  Ind.  194. 

36.  West.  Union  v.  Powell,  94  Va.  268;  26  S.  E.  828. 
Vietti  v.  Nesbitt,  22  Nev.  390 ;  41  Pac.  151. 
Coleman  v.  Davis,  13  Colo.  98  ;  21  Pac.  1018. 
McLaughlin  v.  Wheeler,  1  S.  Dak.  197 ;  47  N.  W.  816. 
Dunham  v.  Holloway,  3  Okla.  244 ;  41  Pac.  140. 
Illstad  v.  Anderson,  2  N.  Dak.  167 ;  49  N.  W.  659. 
Button  v.  Snokomish,  11  Wash.  24  ;  39  Pac.  273. 

Paine    v.    Trask,   5    U.   S.  App.   283 ;   56    Fed.   233 ;   5    C.   C.    A. 

497. 

87.     Brown  v.  Barnwell  Co.,  46  S.  Car.  415 ;  24  S.  B.  191. 
keeper  v.  Paschal,  70  Mo.  App.  117. 

38.  West.  Union  v.  Cline,  8  Ind.  App.  364  ;  35  N.  E.  564. 

39.  Western  v.  Flanagan,  120  Mo.  61 ;  26  S.  W.  531. 
Wells  Fargo  v.  Davis,  105  N.  T.  670;  12  N.  E.  42. 


CIVIL  PRACTICE.  421 

merit40,  or  if  a  written  instrument  be  introduced 
without  proof  of  the  signatures  of  the  parties  bound 
thereon41,  or  if  the  evidence  given  be  entirely  out- 
side of  the  issues  raised  by  the  pleadings42,  or  be 
subject  to  the  objection  that  the  proof  is  a  variance 
from  the  pleadings43,  or  if  proper  preliminary  proof 
has  not  been  made44. 

Sec.  430.  But  it  has  been  held  that  the  objection 
that  evidence  incompetent  has  been  admitted  is  not 
waived  by  neglect  to  make  it  when  the  evidence  was 
introduced,  and  that  it  may  be  made  at  any  time45. 
The  ruling,  however,  is  contrary  to  an  almost  un- 
broken line  of  authority  which  holds  to  the  proposi- 
tion dictated  by  reason,  that  a  party  should  not  be 
allowed  to  take  his  chances  on  incompetent  evi- 
dence's being  favorable  to  him  and  when  it  runs 
against  him  to  have  his  belated  objection  given  rec- 
ognition46. But  the  law  never  requires  of  a  party 

40.  Tebbs  v.  Weatherwax,  23  Cal.  58. 

41.  Perrott  v.  Shearer,   17  Mich.   48. 

Knoll  v.  Kiessling,  23  Oreg.  8  ;  35  Pac.  248. 
McKay  v.  Lane,  5  Fla.  268. 

42.  Boston   Co.  v.   O'Reilly,   158  U.   S.   334;   15   Sup.   Ct.   R.   830;   39 

L.  Ed.  1006. 

Blanchard  v.  Cook,  147  Mass.  215;  17  N.  E.  313. 
Brady  v.  Nally,  151  N.  Y.  258  ;  45  N.  E.  547. 

43.  Colo.  Inv.  Co.  v.  Rees,  21  Colo.   435  ;   42  Pac.  42. 
Stockton,  etc.  v.  Glens  Palls  Co.,  121  Cal.  167  ;  53  Pac.  565. 
Bertha  Co.  v.  Martin,  93  Va.  791 ;  22  S.  E.  869. 

44.  Cox  v.  Gerkin,  38  111.  App.  340. 

45.  Day  v.  Crawford,  13  Ga.  508.  (See  later  cases  same  state  below). 

46.  Maxwell  v.  Hannibal  Ry.,  85  Mo.  95. 
O'Connell  v.  Hotel  Co.,  90  Cal.  515  ;  27  Pac.  373. 
McCoy  v.  Wilson,  8  Colo.  335. 

Jackson  v.  State,  88  Ga.  784 ;  15  S.  E.  677. 

Kinney  v.  Ry.  Co.,  34  N.  J.  L.  517. 

De  Garca  v.  Galvan,  55  Tex.  53. 

Briesenmeister  v.  Lodge,  81  Mich.  525  ;  45  N.  W.  977. 

Pokrok  Co.  v.  Zizkovsky,  42  Neb.  64 ;  60  N.  W.  358. 

Zabel  v.  Nyenhuis,  83  la.  756;  49  N.  W.  999. 

Murray  v.  Ry.  Co.,  3  N.  Mex.  337 ;  9  Pac.  369. 


422  THE  LAW  OF  WAIVEB. 

that  he  do  an  unreasonable  or  an  impossible  thing, 
and  if  at  the  time  evidence  is  offered  or  introduced 
a  party  against  whom  it  operates  is  unaware  of  its 
inadmissibility  and  could  not  with  reasonable  dili- 
gence ascertain  it,  he  will  be  permitted  to  object  at 
the  first  opportunity  offered  after  discovery  of  its 
inadmissibility,  which  objection  should  be  in  the 
form  of  a  motion  to  strike  out47.  And  it  has  been 
said,  as  a  qualification  of  the  general  rule,  that  if 
the  objectionable  features  of  evidence  could  not  un- 
der any  circumstances  have  been  obviated  in  the 
court  below,  objection  may  for  the  first  time  be  made 
in  the  appellate  court48. 

(2)  SPECIFYING   EVIDENCE  AND   GKOUND 
OF  OBJECTION- 

(a)  IN  GENERAL:— Sec.  431.  Objections  to 
the  introduction  of  evidence  must  not  only  be  made 
at  the  proper  time,  but  they  must  present  to  the 
court  the  substance  of  the  complaint  showing  the  in- 
admissibility of  the  offered  evidence,  so  that  the 
court  may  be  fully  advised  of  the  claims  of  either 
party  and  thus  be  better  able  to  avoid  error  in  rul- 
ing. The  objection  must  embrace  all  the  reason  the 
complaining  party  desires  to  urge  for  excluding  the 
evidence,  for  it  is  the  general  rule,  subject  to  a  few 
exceptions,  that  if  an  objection  specify  particular 
reasons  for  excluding  evidence,  it  will  be  considered 
only  upon  those  grounds  and  all  others  will  be 

47.  Sharon  v.  Nimrock,  6  Nev.  378. 
Dyson  v.  Baker,  54  Miss.  24. 

48.  People  v.  Tee  Funk  Din,  106  Cal.  163 ;  39  Pac.  530. 
Hough  ton  v.  Jones,  1  Wall.  702   (U.  S.) 


CIVIL  PRACTICE.  423 

treated  as  waived49.  A  contrary  rule  would  create 
confusion  in  the  trial  of  cases.  For,  as  has  been  said, 
if  parties  were  not  required  to  specify  the  grounds 
of  their  objections,  such  confusion  might  arise  that 
many  cases  would  practically  never  end.  "The  ef- 
fect of  it  would  be  to  compel  one  party  to  fight  in 
the  dark,  not  knowing  when  his  opponent  intended 
to  strike,  while  the  other  would  be  free  to  choose  his 
weapons  and  the  time  and  place  to  use  them.  Such 
things  may  do  in  love  or  war,  when  all  things  are 
said  to  be  fair,  but  life  is  too  short  to  transact  busi- 
ness on  such  a  system  in  courts  of  justice."50.  If 
the  party  objecting  will  not  specify  the  particulars 
rendering  the  evidence  inadmissible,  the  court  is  not 
bound  to  speculate  as  to  what  counsel  might  have 
intended,  for,  unlike  darkness,  a  general  objection 
will  not  cover  a  multitude  of  errors51. 


49.  Washington  v.  State,  106  Ala.  58;  17  So.  546. 
Walker  v.  State,  97  Ga.  197 ;  22  S.  E.  401. 
Bell  v.  Sheridan,  21  D.  C.  370. 

Little  v.  People,  157  111.  153 ;  42  S.  E.  389. 

Davis  v.  Hopkins,  18  Colo.  153;  32  Pac.  70. 

Morris  v.  Henderson,  37  Miss.  492. 

Sullivan  v.  Richardson,  33  Fla.  1 ;  14  So.  692. 

Bailey    v.  Ry.  Co.,  3    S.  Dak.  531;   54    N.  W.  696 ;  19    L.  R.  A. 

653. 

Evanston  v.  Gunn,  99  U.  S.  660  ;  25  L,.  Ed.  306. 
Violet  v.  Rose,  39  Neb.  660;  58  N.  W.  216. 
Rosina  v.  Trowbridge,  20  Nev.   105  ;   17  Pac.  751. 
Burnside  v.  Ry.  Co.,  47  N.  H.  554. 
Crane  v.  State,  94  Tenn.  86;  28  S.  W.  317. 
Bournan  v.  Eppinger,  1  N.  Dak.  21;  44  N.  W.  1000. 

50.  Rush  v.  French,  1  Ariz.  123  ;  25  Pac.  816. 

51.  Heasllt  v.  Stratlin,  54  Ark.  185 ;  15  S.  W.  461. 
Alexander  v.  Thompson,  42  Minn.  498;   44  N.  W.  534. 
Howard  v.  Howard,  52  Kans.  469 ;  34  Pac.  1114. 
States  v.  Chambers,  87  la.  1 ;  53  N.  W.  1090. 
Chandler  v.  Beal,  132  Ind.  596 ;  32  N.  W.  597. 

Davis  v.  Mills,  163  Mass.  481 ;  40  N.  E.  852. 
Holmes  v.  Roper,  141  N.  T.  64  :  36  N.  E.  180. 
Fidler  v.  Hershey,  90  Pa.  St.  363. 
Arnold  v.  State,  5  Wyo.  439 ;  40  Pac.  967. 
Turnbull  v.  Richardson,   69  Mich.   400;   37  N.  W.  499. 


424  THE  LAW  OF  WAIVER. 

Sec.  432.  A  general  objection  in  the  trial  court 
will  not  permit  the  urging  of  a  special  ground  in  the 
appellate  court,  nor  can  a  new  ground  be  substituted 
in  the  higher  court  for  the  one  presented  below52. 
And  a  general  objection  will  be  ineffective  for  any 
purpose  if  a  part  of  the  evidence  be  admissible  even 
though  the  other  part  be  inadmissible53.  It  is  im- 
material for  what  purpose  the  evidence  is  admis- 
sible54, although  it  has  been  held  differently  where 
the  evidence  had  no  bearing  whatever  on  the  is- 
sues55. But  the  exceptions  to  the  rule  are  not  many, 
for  it  is  founded  in  reason,  and  in  consonance  with 
good  sense  requires  a  party  objecting  to  specify  the 
matters  of  which  he  complains  and  not  to  say,  as 
counsel  in  one  case  did,  that  the  objection  is  on  "all 
grounds  ever  known  or  heard  of"56.  For  as  much 
as  any  other  purpose,  the  objection  is  to  give  notice 
to  the  opposing  party  of  the  error  in  order  that  he 
may  correct  it— if  it  is  objected  that  the  question  is 
leading,  that  the  form  may  be  changed;  if  that  the 
evidence  is  irrelevant,  the  relevancy  may  be  shown ; 
if  that  it  is  incompetent,  that  the  incompetency  may 
be  removed;  if  that  it  is  immaterial,  that  the  ma- 
teriality may  be  established;  if  to  the  order  of  in- 
troduction, it  may  be  withdrawn  and  offered  at 
another  time57. 

52.  Wllley  v.  Portsmouth,  64  N.  H.  219;  9  Atl.  220. 
Bright  v.  Ecker,  9  S.  Dak.  449  ;  69  N.  W.  824. 

53.  Mllligan  v.  Furniture  Co.,  Ill  Mioh.  629  ;  70  N.  W.  133. 

54.  Stringer  v.  Frost,  116  Ind.  447;  19  N.  E.  331;  9  A.  S.  R.  875;  2 

L.  B.  A.  614. 
Three  States  Co.  v.  Rogers,  145  Mo.  445  ;  46  S.  W.  1079. 

55.  First  Nat.  Bank  v.  Carson,  30  Neb.  104 ;  46  N.  W.  276. 

56.  Johnston  v.  Clements,  25  Kans.  376. 

67.     Rush  v.  French,  1  Ariz.  124 ;  25  Pac.  816. 

See,  also:  Helena  v.  Albertose,  8  Mont.  449;  20  Pac.  817. 
Johnson  v.  Okerstrom,  70  Minn.  303  ;  73  N.  W.  147. 
Smith  v.  Hanie,  74  Ga.  324. 
Masonic  Soo.  v.  Lackland,  97  Mo.  137;  10  S.  W.  895. 


CIVIL  PRACTICE.  425 

(b)  INCOMPETENCY:— Sec.  433.    However 
far  the  objection  that  evidence  is  incompetent  may 
be  effective,  it  is  well  settled  that  it  cannot  cover 
any  other  grounds  for  the  exclusion  of  the  evidence 
objected  to,  and,  therefore,  such  other  grounds  will 
be  considered  waived.    Thus,  such  objection  will  not 
raise  the  question  of  the  competency  of  the  witness 
to  testify58,  nor  that  parol  evidence  was  admitted 
to  vary  the  terms  of  a  written  instrument59,  nor  that 
secondary  evidence  was  admitted60,  nor  that  a  proper 
foundation  for  impeachment  was  not  laid61,  nor  that 
there  was  a  variance  between  the  pleading  and  the 
proof62.    In  all  cases  the  objection  should  not  stop 
with  declaring  the  evidence  incompetent,  but  in  or- 
der to  be  of  any  avail  it  must  state  in  what  manner 
it  is  incompetent  and  what  facts  constitute  the  in- 
competency63. 

(c)  INCOMPETENT,  IEEELEVANT  AND 
IMMATERIAL:— Sec.  434.     The  objection  to  evi- 
dence as  being  "incompetent,   irrelevant   and  im- 
material" is  so  generally  heard  in  trials,  whether 
civil  or  criminal,  to  the  court  or  a  jury,  that  it  has 

58.     Young  v.  Ry.  Co.,  52  Mo.  App.  530. 

69.     John    Hutchinson    Co.    v.    Pinch,    107    Mich.    15;    64    N.    W.    729;    86 
N.  W.  340. 

60.  Kenosha  Co.  v.  Sheet,  82  la.  640 ;  48  N.  W.  933. 
Walser  v.  Wear,  141  Mo.  443;  42  S.  W.  928. 
Eversdon  v.  Mayhew,  85  Cal.  1;  21  Pac.  431. 

61.  Frankel  v.  Wolf,  7  Misc.  Rep.  190  (N.  T.). 

62.  Keigher  v.  &t  Paiil,  73  Minn.  21 ;  75  N.  W.  732. 

Burlington  Co.  v.  Miller,  19  U.  S.  App.  588 ;  60  Fed.  254 ;  8  C.  C. 

A.  612. 

White  v.  Craft,  91  Ala.  139  ;  8  So.  420. 
Le  Mesnager  v.  Hamilton,  101  Cal.  532;  35  Pac.  1094. 

63.  State  v.  Eisenhour,  132  Mo.  140 ;  33  S.  W.  785. 
Benson  v.  State,  119  Ind.  488 ;  21  N.  E.  1109. 
Jones  v.  Inness,  32  Kans.  177 ;  4  Pac.  95. 

Gladstone  Bank  v.  Keating,  94  Mich.  429;   53  N.  W.   1110. 
Bagley  v.  Lodge,  31  111.  App.  618. 


426  THE  LAW  OF  WAIVER. 

come  to  be  regarded  by  the  layman  as  a  part  of  tae 
stock-in-trade  of  every  lawyer.  And  it  would  be 
thought,  from  simply  listening  to  many  trials,  that 
the  lawyer  may  so  regard  it  himself.  But  a  review 
of  the  authorities  in  which  this  blanket  objection 
has  been  considered  will  be  convincing  that  it  has 
not  the  efficiency  as  a  healing  potion  that  a  majority 
of  those  practicing  the  profession  suppose  it  to 
have.  This  will  become  apparent  by  remembering 
the  rule  hereinbefore  adverted  to  that  the  right  to 
object  to  the  admission  of  evidence  is  waived  if  an 
objection  interposed  fail  to  specify  the  grounds  ren- 
dering it  inadmissible,  to  which  rule  nearly  all 
courts  give  strict  adherence.  Many  lawyers,  how- 
ever— and  it  may  be  truer  of  the  young  than  of  the 
old — feel  it  incumbent  upon  them  to  make  some  ob- 
jection when  evidence  detrimental  to  their  clients 
is  offered,  and  knowing  no  other  at  all  applicable, 
fall  back  upon  the  proposition  that  it  is  incompe- 
tent, irrelevant  and  immaterial,  hoping  that  when 
the  smoke  of  battle  has  cleared  away  they  may  be 
able  to  see  more  clearly  wherein  the  incompetency, 
irrelevancy  or  immateriality  lay  embedded.  But 
appellate  courts  do  not  look  favorably  upon  at- 
tempts to  cover  every  conceivable  error  by  such 
generalities.  For  they  say  that  a  suitor  has  the 
right  to  be  fairly  appraised  by  the  language  of  the 
objection  just  what  point  is  made  against  his  evi- 
dence to  the  end  that  he  may  then  and  there,  if  pos- 
sible, save  himself  from  the  consequences  of  er- 
ror64, and  courts  are  entitled  to  know  exactly  what 


64.     Kolka  v.  Jones,   6  N.  Dak.   461;   71  N.  W.   558;   66  A.   S.  R.   615, 

citing : 

Springer  Co.  v.  Faulk,  8  C.  C.  A.  224  ;  59  Fed.  707. 
Warren  v.  Warren.  93  Va.  73 ;  24  S.  E.  913. 
Hutchinson  Co.  v.  Pinch,  107  Mich.   12;  64  N.  W.  729;  66  N.  W. 

340. 


CIVIL  PEACTICE.  427 

complaint  is  made  so  that  they  may  intelligently 
rule  upon  the  objection65. 

Sec.  435.  So,  where  there  is  a  general  objec- 
tion to  evidence  a  part  of  which  is  admissible  and 
a  part  is  not,  the  objection  is  not  sufficient  to  ex- 
clude any66,  for  the  rules  of  evidence  under  which 
objections  are  permitted  to  be  made  were  not  de- 
signed for  the  purpose  of  allowing  them  to  be  made 
grab-nets  of  to  catch  anything  that  might  get 
fastened  thereon.  Counsel,  who  are  presumed  to 
have  studied  their  cases,  ought  to  be  able  to  state 
the  particular  objections,  and  if  none  are  stated,  it 
is  fair  to  assume  that  none  exist,  since  an  objection 
that  cannot  be  particularly  stated  is  not  worth  the 
making.  The  rule  is  a  reasonable  one,  fair  to  the 
court  and  not  burdensome  to  the  parties67. 

Sec.  436.  So,  the  rule  being  that  objection  to 
the  introduction  of  evidence  on  one  ground  is  a 
waiver  of  any  right  to  object  on  other  grounds,  and 
that  a  general  objection  is  a  waiver  of  special 
grounds,  it  necessarily  follows  that  evidence  to 
which  a  general  objection  is  interposed  will  not  be 
excluded  on  account  of  such  general  objection  if  it 
be  competent  for  any  purpose68.  As  an  illustration 
of  this  rule,  plaintiffs  brought  an  action  against  a 

Bright  v.  Ecker,  9  S.  Dak.  449 ;  69  N.  W.  824. 
Levine  v.  Lancashire  Co.,   66  Minn.  138;   68  N.  W.  855. 
Hawver  o.  Bell,  141  N.  T.  140;  36  N.  B.  6. 
Ladd  v.  Sears,  9  Oreg.   244. 

Taylor  v.  Wendling,   66  la.   562;   24  N.  W.  40. 
66.     Hoard  v.  Little,  7  Mich.  468. 

Miller  v.  State,   12  Lea  225    (Tenn.). 

66.  Gofer  v.  Scroggins,  98  Ala.  342  ;   39  A.  S.  R.  54. 

St.  Louis  Ry.  Co.  v.  Hendricks,  48  Ark.  177;  3  A.  S.  R.  220. 

67.  Ohio  Ry.  Co.  v.  Walker,  113  Ind.  196;   15  N.  E.  234;  3  A.  S.  K. 

638. 

Milligan  v.  Ry.  Co.,  Ill  Mich.  629;  70  N.  W.  133. 
New  York  Co.  v.  Gallaher  ,79  Tex.  685  ;  15  S.  W.  694. 
*8.     Miss.  Mills  v.  Smith,  69  Miss.  299;   30  A.  S.  R.  546. 


428  THE  LAW  OF  WAIVEE. 

railroad  company  for  damages  from  an  excavation 
on  plaintiff's  land  by  defendant.  For  the  purpose 
of  ascertaining  the  amount  of  the  damage,  witnesses 
were  asked  by  plaintiffs,  "What  effect  did  the  cut 
have  upon  the  value  of  the  property?"  and  upon 
their  replying  that  its  effect  was  to  depreciate  the 
value  of  the  property,  they  were  then  asked  "To 
what  extent",  and  in  reply  stated  the  amount.  These 
questions  were  objected  to  by  the  defendant  on  the 
ground  that  they  were  incompetent,  irrelevant  and 
immaterial;  and  on  appeal  of  the  case  it  was  urged 
that  the  opinions  of  the  witnesses  should  have  been 
limited  to  the  market  value  of  the  property  before 
and  after  the  excavation,  and  that  the  jury  should 
have  drawn  its  conclusion  of  the  amount  of  damage 
from  such  evidence  rather  than  from  the  opinions  of 
the  witnesses.  But  the  court  said  that  if  this  special 
objection  had  been  made  at  the  trial  the  plaintiffs 
could  have  asked  the  questions  in  such  form  as  to 
obviate  the  objection;  but  it  was  further  said  that 
it  is  well  settled  that,  unless  the  evidence  is  inad- 
missible for  any  purpose,  a  party  is  not  at  liberty 
under  a  general  objection  afterwards  to  urge  a 
special  objection69. 

Sec.  437.  Since  a  general  objection  waives 
special  grounds  of  complaint  as  to  offered  evidence, 
an  objection  thereto  as  incompetent,  irrelevant  and 
immaterial  waives  the  question  of  the  competency 
of  a  witness70,  that  the  evidence  was  not  the  best 

«9.     Eachus  v.   Los  Angeles  Ry.   Co.,   103   Cal.   614;   37  Pac.   750;   42 
A,  S.  R.  149. 

Crocker  v.  Carpenter,  98  Cal.  418;  33  Pac.  271. 

See,  also:     Bundy  v.  Cunningham,  107  Ind.  360;  8  N.  E.  174. 

Wilson  v.  Reeves,  70  Mo.  App.  30. 
70.     Ball  v.  Keokuk  Ry.,  74  la.  132;  37  N.  W.  110. 


CIVIL  PRACTICE.  429 

evidence71,  that  no  proper  foundation  was  laid72, 
that  no  preliminary  proof  of  the  execution  and  de- 
livery of  a  deed  was  made73,  that  the  publication 
of  a  city  ordinance  was  not  established74,  that  a  city 
ordinance  was  invalid75,  that  a  question  is  leading76, 
that  an  answer  is  not  responsive77  or  that  evidence 
is  hearsay78. 

(d)  EXCEPTIONS  TO  RULE:— Sec.  438. 
The  rules  announced  in  this  division  are  general  in 
their  application,  but  not  without  exceptions.  The 
requirement  that  the  objection  shall  point  out  the 
evidence  and  the  particular  grounds  rendering  it  in- 
admissible, and  holding  all  grounds  waived  if  not 
specified,  is  for  the  purpose  of  calling  to  the  atten- 
tion of  the  court  and  the  opposite  party  possible  er- 
rors in  order  that  they  may  be  corrected  or  obvi- 
ated. But  the  cases  in  which  this  object  could  not 
possibly  be  attained  constitute  the  exceptions  to  the 
rule,  and  the  holding  of  the  courts  in  this  connection 
is  that  if  the  defect  could  not  be  cured  by  a  special 
objection,  a  general  objection,  or  the  total  want  ol  an 
objection,  is  no  waiver  of  the  defect  in  the  evidence 

71.  Rich  v.  Trustees,  158  111.  242;  41  N.  E.  924. 
Homestead  Co.  v.  Buncombe,  51  la.  525 ;  1  N.  W.  725. 
8  Enc.  PI.  &  Pr.  232  and  cases  cited. 

72.  Seventy-Day  Assoc.  v.  Fisher,  95  Mich.  274 ;  54  N.  W.  769. 

73.  Rupert  v.  Penner,  35  Neb.  587  ;  53  N.  W.  598. 
Knoll  v.  Klessling,  23  Oreg.  8 ;  35  Pac.  248. 
Calhoun  v.   Hannan,    87   Ala.    277. 

Thompson   v.   Ellenz,    58   Minn.   301;    59   N.   W.    1023. 

74.  Klotz  v.  Wlnona  Ry.  Co.,   68  Minn.   341 ;   71   N.  W.   257. 
Chicago  Ry.  v.  People,  120  111.  667;  12  N.  E.  207. 

76.     Pittsburg  Ry.  v.  Lyons,  159  111.  576;  43  N.  E.  377. 

76.  Tannish  v.  Tarbox,  57  Minn.  245  ;  59  N.  W.  300. 

77.  O'Callaghan  v.  Bode,  84  Cal.  489 ;  24  Pac.  269. 

78.  Sherwood  v.  Sissa,  5  Nev.  349. 
Yeatman  v.  Erwin,  5  La.  265. 


430  THE  LAW  OF  WAIVER. 

and  same  may  be  taken  advantage  of  at  any  time79. 
This  is  analogous  to  the  rule  that  objections  to  a 
complaint  for  failure  to  state  a  cause  of  action  are 
never  waived,  for  the  theory  is  that  in  the  latter 
case  no  cause  of  action  is  alleged  and  in  the  former 
none  is  proved. 

(e)  OBJECTIONS  ABANDONED :— Sec.  439. 
Even  if  a  party  has  made  a  proper  objection  to  the 
admission  of  evidence  and  duly  excepted  to  the 
court's  ruling,  he  is  not  yet  over  the  shoals;  for  he 
may  by  his  subsequent  conduct  waive  his  right  to 
insist  on  his  objection.  Thus,  if  he  leave  to  the  dis- 
cretion of  a  witness  the  objection  to  the  privileged 
character  of  the  facts  inquired  about  he  waives  the 
right  to  further  object  to  such  testimony  as  being 
privileged80.  Or,  if  he  introduce  as  a  part  of  his 
case  the  same  evidence  objected  to,  he  thereby 
waives  his  right  to  object81 ;  and  such  result  has 
been  held  to  have  been  produced  by  his  bringing  the 
same  evidence  out  on  cross-examination82,  although 
such  is  doubtless  not  true  if  he  cross-examine  the 


79.     Nutwell  v.  Tongue,  22  Md.  419. 

Espalla  v.   Richard,   94  Ala.   159;   10   So.   137,. 

Dow  v.  Merrill,  65  N.  H.  107 ;  18  Atl.  317. 

McCadden  v.   Lowenstein,    92   Tenn.    614;    22   S.   W.   426. 

Snowden  v.  Coal  Co.,  16  Utah  366  ;  52  Pac.  599. 

Lothrop  v.  Roberts,  16  Colo.  250;  27  Pac.  698. 

Connor  v.  Black,   119   Mo.   126;    24   S.  W.   184. 

Tozer  v.  N.  T.  Ry.,  105  N.  T.  659;   11  N.  B.  846. 

Waller  v.  Leonard,   89  Tex.  507;  35  S.  W.   1045. 

Hodges  v.  Hodges,  106  N.  Car.  374;  11  S.  E.  364. 

Bowman  v.  Eppinger,  1  N.  Dak.  21 ;  44  N.  W.  1000. 

Brumley  v.  Flint,  87  Cal.  471 ;   25  Pac.  683. 

State  v.  Soule,  14  Nev.  453. 

Greenleaf  v.  Ry.  Co.,  30  la.  301. 
SO.     Scales  v.  Henderson,  44  S.  Oar.  548;   22  S.  E.  724. 

81.  Miles   v.    Chicage    Ry.,    76    Mo.    App.    484. 

82.  Schroeder  v.   Michel,   89   Mo.   43;    11   6.  W.   814. 


CIVIL  PRACTICE.  431 

same  witness  upon  the  evidence  to  which  he  has 
properly  objected83. 

B.  VAEIANCE:— Sec.  440.  Where  there  is 
a  variance  between  the  pleading  and  the  proof,  such 
variance  is  fatal  to  a  recovery.  But  it  is  not  so 
unless  properly  taken  advantage  of  by  the  party  en- 
titled to  insist  upon  it.  To  present  the  question  of 
variance  as  one  of  law  the  evidence  should  be  ob- 
jected to  upon  that  ground  at  the  time  it  is  offered, 
or  when  the  variance  becomes  apparent,  the  party 
should  move  to  exclude  the  evidence,  or  in  some  other 
appropriate  way  the  question  should  be  raised  so 
that  the  trial  court  may  pass  upon  it ;  and,  to  prop- 
erly raise  the  question  in  any  of  these  modes,  the 
variance  should  be  distinctly  pointed  out  so  as  to  en- 
able the  trial  judge  to  pass  upon  it  understandingly, 
and  to  enable  the  other  party,  if  such  a  course 
should  become  necessary,  to  obviate  the  objection 
by  an  amendment 84.  Thus,  it  was  held  that  in  the 
appellate  court  an  objection  that  there  was  a  vari- 
ance between  an  instrument  set  out  in  the  declara- 
tion and  the  one  offered  and  admitted  in  evidence 
could  not  be  made  when  objection  on  this  ground 
was  not  made  in  the  court  below  although  objection 
was  there  made  on  other  grounds85.  In  other 
words,  objection  to  evidence  on  the  ground  of  vari- 
ance between  it  and  the  pleading  under  which  it  was 
offered  must  specify  the  variance  as  ground  of  ob- 

83.  Kans.  City  Ry.  Co.  v.  Crocker,  95  Ala.  412 ;  11  So.  262. 
Lyons  v.  Elevator  Co.,  26  App.  DIv.  57  ;  49  N.  Y.  Supp.  610. 

84.  Llbby  v.  Scherman,  146  111.  540;  34  N.  E.  801;  37  A.  S.  R.  191. 

85.  Richelieu  Hotel  Co.  v.  Military  Co.,  140  111.  248;   29  N.  E.   1044- 

33  A.  S.  R.  234. 


432  THE  LAW  OF  WATVER. 

jection86,  must  be  made  at  the  time  it  is  offered  or 
as  soon  as  the  variance  becomes  apparent87,  cannot 
be  made  after  verdict88,  or  on  a  motion  for  a  new 
trial89,  or  on  appeal90 ;  and  unless  made  at  the  proper 
time  and  in  the  proper  manner  it  will  be  held 
waived.  The  only  exception  to  such  rule  is  the  case 
where  the  variance  is  so  pronounced  as  to  leave  the 
allegations  without  supporting  proof  in  their  en- 
tire scope91. 

3.    EXCEPTIONS     TO     RULINGS     OF     THE 

COURT- 

A.  IN  GENERAL:— Sec.  441.  The  object  of 
an  objection  to  any  portion  of  the  procedings  be- 
fore courts  is  to  present  to  the  court  the  complaint 
a  party  has  against  those  matters  which,  under  the 
rules  of  procedure,  he  claims  as  prejudicial  to  his 

86.  Colfax  Trust  Co.  v.  So.  Pac.,  118  Gal.  648;  50  Pac.  776;  40  1*  R. 

A.   78. 

Murchie  v.  Peck,  160  111.  175 ;  43  N.  E.  356. 
Dano  v.  Sessions,  65  Vt.  79 ;  26  Atl.  585. 
Sup.  Council  v.  Fidelity  Co.,  63  Fed.  48. 

87.  Strauss   v.   Young,    36   Md.    246. 

Cunningham  v.  Bostwick,  7  Colo.  App.  169 ;  45  Pac.  151. 
Shmit  v.  Day,  27  Oreg.  110 ;  29  Pac.  870. 
Shenandoah  Ry.  v.  Moose,  83  Va,  827;  3  S.  B.  796. 

88.  Doyle  v.  Mulren,  7  Abb.  Pr.   (N.  S.)   258. 

89.  Waidner  v.  Pauly,  141  111.  442 ;  30  N.  E.  1025. 

90.  Wechselbery  v.  Bank,  64  Fed.  90  ;  26  L.  R.  A.  470. 
Broughel  v.  Telephone  Co.,  72  Conn.  617;  49  L.  R.  A.  404. 
Willey  v.  Elec.  Lt  Co.,  168  Mass.  40;   46  N.  E.  395;   37  L.  R.  A. 

723. 

Fryer  v.  Breeze,  16  Colo.  323 ;  26  Pac.  817. 
Bond  v.   State,  56  Ark.  444;   19   S.  W.   1062. 
Lary  v.  Lewis,  76  Ga.  46. 
Emerson  v.  Gainey,  26  Fla.  133 ;  27  So.  526. 
Challis  v.  Atchison,  45  Kans.   22  ;  25  Pac.  228. 
Smith  v.  Phelan,  40  Neb.  765;  59  N.  W.  562. 
Bardwell  v.  Anderson,  13  Mont.  87 ;  32  Pac.  285. 
Ireland  v.  Drown,  61  N.  H.  638. 
Cremer  v.  Miller,  56  Minn.  52  ;  57  N.  W.  318. 
Rainsford  v.  Massengale,  35  Pac.  774. 
Shanks  v.  Whitney,  66  Vt.  405 ;  29  Atl.  367. 
$1.     Roberta  v.  Graham,  6  Wall.  578  (U.  S.). 


CIVIL  PRACTICE.  433 

rights.  An  exception  is  the  follow-up  complement 
of  the  objection,  the  registered  intention  of  the 
party  to  rely  upon  his  objection  for  the  purpose  of 
reviewing  in  the  appellate  court  the  ruling  of  the 
court  below.  And  as  an  objection  is  necessary  in 
order  to  bring  the  cause  of  complaint  to  the  atten- 
tion of  the  trial  court,  so  is  the  preserving  of  an  ex- 
ception essential  to  procure  a  review  of  alleged  er- 
ror in  the  ruling  thereon.  And  if  an  exception  be 
not  taken  to  the  ruling  of  the  court,  a  party  will  be 
held  to  have  abandoned  or  waived  his  objection  and 
no  error  of  the  court  in  such  ruling  can  be  later 
complained  of  by  him.  Therefore,  to  constitute  a 
complete  record  sufficient  for  the  review  of  alleged 
errors,  there  must  be  an  objection  to  such  alleged 
erroneous  procedure,  a  ruling  thereon  and  an  ex- 
ception to  the  ruling. 

Sec.  442.  As  objections  must  specify  clearly 
the  matters  constituting  the  cause  of  complaint,  so, 
exceptions,  to  be  of  any  avail,  must  present  distinct- 
ly and  specifically  the  ruling  objected  to.  A  case 
ought  not  to  be  left  in  such  condition  after  trial  that 
the  defeated  party  may  hunt  through  the  record 
and  if  he  finds  an  unsuspected  error,  attach  it  to 
a  general  exception  and  thus  obtain  a  reversal  of 
the  judgment  upon  a  point  that  may  never  have 
been  brought  to  the  attention  of  the  court  below92. 
And  they  must  be  sufficiently  specific  that  the 
court  may  know  to  what  ruling  the  exceptions  are 
intended  to  apply.  Therefore,  an  exception  must 
be  taken  to  each  ruling  as  made,  as  a  single  ex- 
ception will  not  be  sufficient  to  cover  several  rul- 
ings. It  is  well  established,  also,  that  the  exception 

t2.     Sprlngfleld  Ins.  Co.  v.  Sea,  21  Well  162  (U.  S.). 


434  THE  LAW  OF  WAIVER. 

must  be  taken  at  the  time  the  ruling  or  decision 
is  made,  for  a  rule  permitting  it  at  any  other  time 
would  be  the  cause  of  endless  confusion  in  attempts 
to  connect  the  exception  to  the  proper  ruling.  So, 
it  is  held  practically  uniformly  that  erroneous  rul- 
ings or  decisions  of  the  trial  court  are  waived, 
even  though  properly  objected  to,  unless  an  excep- 
tion is  taken  at  the  time  and  before  any  further 
steps  are  taken  in  the  case93.  The  rule  however, 
is  modified  through  statutory  provision  in  some 
states,  and  the  procedure  is  governed  thereby.  It 
is  not  our  object,  however  to  cover  extensively  in 
these  pages  the  subject  of  exceptions;  our  pur- 
pose is  to  show  what  may  be  waived  and  what 
will  amount  to  a  waiver  in  the  taking  or  failing  to 
take  exceptions. 

B.  TO  EXCLUSION  OF  EVIDENCE :— Sec. 
443.  The  negligence  or  unskillfulness  of  counsel  is 
responsible  for  losses  to  litigants  more  frequently 
through  failure  to  properly  conduct  their  trial 
so  as  to  present  errors  to  an  appellate  court  for  re- 
view than  in  any  other  phase  of  the  proceeding. 
For  such  there  is  little  excuse,  for  the  rules  are  sim- 
ple and  easily  followed  if  proper  attention  be  given 

91.     Laird  v.  Upton,  8  N.  Mex.  409  ;  45  Pax:.  1010. 
Territory  v.  Baker,  4  N.  Mex.  236;  13  Pac.  30. 
Allen  v.  Sallinger,  108  N.  Car.  159;   12  S.  E.  896. 
Lester  v.  Ga.  Ry.,  90  Ga.  802;  17  S.  E.  113. 
Carelton  v.  Lewis,  67  Me.  77. 
Barney  v.  Scherling,  40  Miss.  320. 
Matsinger  v.  Fort,  118  Ind.  107;  20  N.  E.  653. 
Meier  v.  Morgan,   82  Wis.   289;   52  N.  W.   174. 
McAnaw  v.  Matthis,  129  Mo.  142;  31  S.  W.  344. 
Bransford  v.  Karn,   87  Va.   242  ;   12  S.  E.  404. 
Powers  v.  McCue,  48  Kans.  477;  29  Pac.   686. 
Franks  v.  State,  12  Oh.  St.  1. 

Stedham  v.   Creighton,   28    S.   Car.    609;    9   S.   E.    465. 
United  States  v.  Gary,  110  U.  S.   51. 
Hanna  v.  Maas,  122  U.  S.  24 ;  7  Sup.  Ct.  R.  1055;  30  L.  Ed.  1117. 


CIVIL  PKACTICB.  435 

to  details.  Thus,  the  rule  is  of  long  standing  and 
the  object  of  general  adherence  by  the  courts  that 
to  reserve  any  ruling  of  the  trial  court  in  excluding 
evidence,  a  pertinent  question  must  be  asked  the 
witness  testifying,  and,  upon  objection,  a  statement 
made  to  the  court  as  to  what  the  answer  will  be,  and 
an  exception  at  the  time  to  the  adverse  ruling  of 
the  court94.  And  it  is  said  that  no  rule  of  practice 
is  better  settled  than  that  in  taking  exception  to 
the  decision  of  the  court  in  overruling  the  offer  of 
evidence  or  excluding  a  defense,  the  exception  must 
state  the  ground  upon  which  the  offer  was  made95; 
and  that  an  exception  to  the  exclusion  of  a  question 
cannot  be  maintained  where  there  is  nothing  to 
show  what  the  answer  would  have  been  or  what 
the  exceptant  expected  to  prove  thereby96.  Fur- 
thermore, the  exception  must  be  specific  and  di- 
rected to  the  exclusion  of  that  evidence  alone  which 
is  illegal  for  a  general  exception  to  the  entire  rul- 
ing of  the  trial  court  in  granting  a  motion  to  exclude 
evidence  in  general  including  both  legal  and  illegal 
evidence  will  not  be  sufficient  to  present  any  ques- 
tion for  review97.  The  principle  obtaining  that 
the  failure  of  the  prejudiced  party  to  except  to  the 
ruling  of  the  trial  court  in  excluding  evidence  is  a 
waiver  of  any  error  in  such  ruling  and  debars  such 

94.  Kern  v.  Bridwell,  119  Ind.  226  ;  21  N.  B.  664  ;   12  A.  S.  R.  409. 
Chicago   Ry.   v.   Champion,    9    Ind.   App.    510;    36    N.   E.    221;    37 

N.    E.    21;    71   A.   S.    R.    357. 

Ebner  v.  Mackey,  186  111.  297;  57  N.  E.  834;  78  A.  S.  R.  280. 
Flach  v.  Gottschalk,  88  Md.  368  ;  41  Atl.  908  ;  71  A.  S.  R.  418. 

95.  Dale  v.  See,  51  N.  J.  I,.  378;  18  Atl.  306;  14  A.  S.  R.  688. 

96.  Shinners   v.    Locks   &   Canals,    154    Mass.    168 ;    28    N.    E.    10 ;    12 

L.  R.  A.  554 . 
$7.     Henry  v.  Hall,  106  Ala.  84;  17  So.  187;  54  A.  S.  R.  22. 


436  THE  LAW  OF  WAIVER. 

party  from  relying  thereon  in  the  appellate  court98, 
it  is  further  the  doctrine  of  the  cases  that  the  ex- 
ception must  be  taken  at  the  time  the  evidence  is 
excluded  or  it  will  be  held  waived".  Thus,  an  ex- 
ception not  taken  until  the  term  of  court  following 
the  trial  is  too  late100,  and  even  where  it  is  not 
taken  until  the  case  is  submitted  to  the  jury1  the 
question  cannot  be  reviewed  on  appeal.  It  is  of 
no  moment  at  what  stage  of  the  trial  the  excluded 
evidence  was  offered  and  rejected,  the  rule  is  the 
same,  and  an  exclusion  by  refusal  to  re-open  the 
case  to  admit  it  must  be  excepted  to  at  the  time  or 
any  error  therein  will  be  held  waived2. 

C.  TO  ADMISSION  OF  EVIDENCE :— Sec. 
444.  The  principles  of  waiver  applying  to  excep- 
tions to  the  decisions  of  the  trial  court  excluding 
or  rejecting  evidence  are  by  analogy  applicable 
to  cases  wherein  objections  are  made  to  the  admis- 
sion of  evidence.  So,  objections  to  the  admission 
of  evidence  become  abortive  in  so  far  as  the  review 
of  errors  thereon  in  the  appellate  court  may  be 

98.  Belk  v.  Meaghler,   104  U.  S.  279;   26  L.  Ed.   735. 
Pittsburgh  Co.  v.  Heck,  102  U.  S.  120;  26  L.  Ed.  58. 
Collier  v.  Jenks,  19  R.  I.  493;  34  Atl.  998. 

Lewis  v.  McDougall,   19  Wash.   388 ;   52  Pac.   664. 
Newmark  v.  Marks,  28  Pac.   960. 
Marfel  v.  Knott,  128  Pa,  SL  528;   18  Atl.  390. 
Souster  v.  Black,  87  la.  519 ;  54  N.  W.  534. 
Roehl  v.  Baasen,  8  Minn.  26. 
Chicago  Co.  v.  Elliott,  117  Mo.  549 ;  24  S.  W.  53. 
Emeric  v.  Alvarado,  90  Cal.  444 ;  27  Pac.  356. 
Mahany  v.  People,  138  111.  311;  27  N.  E.  918. 

99.  Voorman  v.  Voight,  46  Cal.  392. 

Downey  v.  Read,  125  Mo.  501;  28  S.  W.   860. 
State  v.  Ballard,  79  N.  Car.  627. 
Griggs  v.  Howe,  31  Barb.  100. 
Weis  v.  Madison,  75  Ind.  241. 

Roberts  v.  Graham,  73  U.  S. ;  6  Wall  578;  18  L.  Ed.  791. 
100.     U.  S.  v.  Carey,  110  U.  S.  51. 

1.  Roberts  v.    Graham,   supra. 

2.  Barnum  v.  Andrews.   106  Mich.   81 ;   63   N.  W.   983. 


CIVIL  PRACTICE.  437 

concerned  unless  the  objection  be  supported  and 
re-enforced  by  a  proper  exception ;  for  without  such 
exception,  the  objecting  party  will  be  held  to  have 
abandoned  his  objection  and  waived  any  error  of 
the  trial  court  in  its  ruling  on  the  evidence8.  And 
to  be  of  any  avail,  the  exception  must  be  timely, 
following  immediately  after  the  ruling  of  the 
court4,  for  if  be  not  made  at  that  time,  much  diffi- 
culty would  be  incurred  in  finding  the  evidence  ob- 
jected to  and  attaching  it  to  the  proper  exception. 
To  permit  or  countenance  this  would  be  going  be- 
yond the  bounds  of  reason,  for  the  purpose  of  courts 
is  to  administer  justice  through  convenient  and 
speedy  means,  and  rules  of  evidence  are  devised 
and  applied  to  facilities  the  despatch  of  judicial 
business,  and  not  to  become  straws  to  save  sub- 
merged counsel.  These  rules  are  uniformly  applied 
unless  changed  by  statute  or  rules  of  court5.  Thus, 
it  is  held  that  a  party  objecting  to  the  admission  of 
evidence  will  be  held  to  have  waived  any  error  in 

3.  Clark  v.  Hodges,  65  Vt.  273. 
Newport  News  v.  Pace,  158  U.  S.  63. 

Sahlien  v.  Lonoke  Bank,   90  Term.   221;    16  S.  W.   373. 

Halstead  v.  Horton,  38  W.  Va.  727. 

Kumler  v.  Ferguson,   22   Minn.   117. 

Branson  v.  Com.   92  Ky.   330  ;   17  S.  W.   1019. 

Morris  v.  Everly,  19  Colo.  529  ;  36  Pac.  150. 

Benepe  v.  Wash.,  38  Kans.  407;   16  Pac.  950. 

Fager  v.  State,   22  Neb.   332;   35  N.  W.  195. 

4.  Chambers  v.  Baptist  Soc.,   1  B.  Mon.   215    (Ky.). 
Pool  v.  Fleeger,  36  U.  S. ;  11  Pet.  185;  9  L.  Ed.  681. 
Texas,  etc.,  Ry.  v.  Saxton,  7  N.  Mex.  302 ;  34  Pac.  532. 
Tayloe  v.   Steamship   Co.,   88   N.   Car.   15. 
Guerlnger  v.  Creditors,  33  La.  Ann.  1279. 

Feidler  v.  Motz,  42  Kans.  519  ;   22  Pac.  561. 
Griffiths  v.  Hanks,  91  Mo.  109  ;  4  S.  W.  508. 
Downey  v.  Read,   125  Mo.   501;   28  S.  W.   860. 
Collins  v.  Bank,  75  Tex.  254  ;  11  S.  W.  1053. 
McPhee  v.   Sullivan,   77   Wls.    33;    45    N.   E.    808. 
Watson  v.   Skating  Rink,   177   111.   203  ;    52   N.   E.   317. 
6.     In  re  Brundage,  31  App.  Div.  348;  52  N.  T.  Supp.  362. 
Greenbrter  Ex.  v.  Ocheltree,  44  W.  Va.  626 ;  30  S.  E.  78. 


438  THE  LAW  OF  WAIVER. 

the  court's  ruling  by  failing  until  after  verdict  to 
have  an  exception  noted6.  The  principle  of  waiver 
of  errors  in  the  admission  of  evidence  by  failure  to 
preserve  proper  exceptions  at  the  proper  time  is 
equally  applicable  to  cases  tried  by  the  court  and 
those  tried  to  a  jury  unless  changed  by  statute7. 

Sec.  445.  It  makes  no  difference  what  the  ob- 
jection to  the  admission  of  evidence  may  be,  the 
rules  are  the  same.  The  evidence  may  be  hearsay, 
secondary,  parol  introduced  to  vary  the  terms  of  a 
writing,  may  be  offered  without  the  required  found- 
ation or  preliminary  proof,  or  irrelevant,  immate- 
rial or  incompetent  in  any  manner,  but  whatever  be 
the  facts  rendering  it  inadmissible,  it  will  be  ad- 
mitted unless  objection  be  made  at  the  time  it  is  of- 
fered ;  and  if  objected  to  at  the  proper  time,  any  er- 
ror of  the  court  in  its  ruling  receiving  the  evidence 
will  be  waived  unless  the  objector  except  to  the 
ruling  of  the  court  at  the  time  it  is  made8. 

Sec.  446.  The  principles  of  waiver  governing 
in  the  admission  or  exclusion  of  evidence  apply 
with  equal  force  where  a  ruling  is  made  on  the 
competency  of  a  witness.  When  the  testimony  is 

6.  Tayloe  v.  Steamship  Co.,   88  N.  Car.  15. 

7.  MoCullough  v.  Biedler,  66  Md.  283  ;  7  Atl.  454. 

8.  Coleman  v.  Davis,  13  Colo.  98 ;   21  Pac.  1018. 
Sims  v.  State,   87  Ga.   589;   13   S.  E.   551. 
Paxon  v.  Brown,  61  Fed.  874. 

Spies  v.  Illinois,   123  U.  S.   143. 

Allen  v.  Ozark  Co.,  55  Ark.  549  ;   18  S.  W.  1042. 

Sherwood  v.  Sissa,  5  Nev.  349. 

Huey  v.  Drlnkgnave,   19   La.   482. 

Zabel  v.  Hyenhuis,  83  la.  756;   45  N.  W.   999. 

Lyons  v.  Child,  61  N.  H.  72. 

Brown  v.  Oldham,  123  Mo.  621 ;  27  S.  W.  409. 

Lamberts  v.   Cooper,    29   Gratt.    61. 

Holman  v.  Ry.  Co.,  114  Mich.  308;  72  N.  W.  202. 

Colo.  Co.  «.  Brown,  15  Colo.  195 ;  25  Pac.  87. 

Wise  v.  Wakefleld,  118  Cal.  107;  53  Pac.  664. 


CIVIL  PRACTICE.  439 

offered,  it  is  the  duty  of  him  who  will  be  prejudiced 
by  the  witness  to  register  an  objection  to  the  wit- 
ness and  whichever  way  the  court  rule,  the  losing 
party  should  have  an  exception  noted;  for  if  he 
fail  to  except,  he  will  be  held  to  have  waived  his  ob- 
jection and  any  error  of  the  court  in  its  ruling  there- 
on9. And  the  same  is  true  if  the  objection  be  to  the 
question  asked10,  or  that  evidence  was  not  offered 
in  the  proper  time11.  And  it  is  safe  to  say  that 
the  general  rule,  subject  to  but  few  exceptions,  is 
that  where  there  is  an  objection  in  the  course  of 
taking  the  evidence  in  a  case,  the  ruling  thereon 
must  be  excepted  to  at  the  time  or  the  objection  is 
waived  and  the  waiver  precludes  consideration  of 
the  point  on  appeal. 

4.  WAIVEE  AS  TO  NON-SUITS :— See. 
447.  A  non-suit  is  a  mode  of  taking  a  case  from  the 
jury  in  which  the  court  determines  as  a  matter  of 
law  that  there  is  no  evidence  before  the  jury  upon 
which  they  could  find  a  verdict  for  the  plaintiff.  In 
those  jurisdictions  where  the  practice  obtains  of 
moving  for  a  non-suit,  the  test  seems  to  be  that  if 
from  a  view  of  all  the  evidence  it  is  apparent  that 
the  court  would  be  required  in  the  interest  of  justice 
to  set  aside  a  verdict  if  one  should  be  rendered  for 
the  plaintiff,  it  is  the  court's  duty  to  grant  a  non-suit 
upon  motion  of  the  defendant  therefor.  But,  if 

9.     State  v.  Steeves,  29   Greg.  85;  44  Pax;.   898. 
Walker  v.  State,  34  Fla.  167 ;  16  So.  80. 
Brown  v.  Foster,  112  Mo.  297;  20  S.  W.  611. 
Young  v.  Omohundro,  69  Md.  424  ;   16  Atl.  120. 
Downey  v.  Hicks,   14   How.   240;    14   L.  Ed.   404. 
Auchampaugh   v.   Schmddt,   70   la.   642 ;    27   N.  W.   805. 

10.  Corcaran  v.  Batchelder,  147  Mass.   541;   18  N.  E.  420. 
Scott  v.   Lloyd,    9   Pet.    418 ;    9   L.   Ed.   178. 

11.  Olmstead  v.  Webb,  5  App.  D.  C.  38;  23  Wash.  L.  R.  169. 
Kingman  v.  Sharley,  1  Mo.  App.  281. 


440  THE  LAW  OF  WAIVER. 

viewed  in  its  most  favorable  light,  the  evidence  of 
plaintiff  could  in  any  way  warrant  a  verdict  in  his 
behalf,  a  non-suit  should  be  denied. 

Sec.  448.  But  cases  are  not  always  made  up 
of  the  evidence  of  plaintiff  alone,  for  it  frequently 
occurs  that  the  defendant,  in  presenting  his  side  of 
the  controversy,  may  supply  a  link  in  the  chain,  the 
absence  of  which  had  up  to  that  time  rendered  plain- 
tiff's case  imperfect.  Accordingly,  the  rule  has 
been  generally  adopted  that  if  the  court  has  erro- 
neously overruled  the  motion  of  defendant  for  a  non- 
suit on  account  of  the  absence  of  evidence  required 
to  make  out  a  case  for  the  plaintiff,  the  defendant 
waives  his  right  to  a  non-suit  and  any  error  of  the 
court  in  overruling  his  motion  by  himself  introduc- 
ing evidence  which  supplies  the  defects  in  plain- 
tiff's proof12.  Or,  as  it  has  been  said,  "where  a  mo- 
tion for  a  non-suit  was  improperly  denied,  but  the 
defendant  then  introduced  testimony  enabling  the 
plaintiff  to  supply  the  defect  in  his  case,  that  de- 
fendant thereby  waived  the  objection"13.  On  the 
trial  of  a  cause,  after  the  plaintiff  had  introduced 
his  evidence  which,  as  the  appellate  court  found, 
was  insufficient  to  warrant  a  verdict  for  him,  the 
defendant  introduced  evidence  supplying  the  de- 
fects in  the  case  of  plaintiff;  and  the  appellate 
court  on  this  point  said  that  it  seems  to  be  well  set- 
tled that  if  a  defendant,  after  a  motion  for  a  non- 
12.  Barrow  v.  Lumber  Co.,  14  Idaho,  698 ;  95  Pac.  682. 

Smith  v.  Compton,  6  Cal.  24. 

Oakes  v.  Thornton,  28  N.  H.   44. 
13.     Smith  v.  Compton,  6  Cal.  24,  cited  in: 

Jennings  v.  Bank,  13  Colo.  417;  22  Pac.  777;  16  A,  S.  R.  210. 

Illstad  v.  Anderson,  2   N.  Dak.   167;  49  N.  W.   659. 

Bogk  v.  Gassert,   149  U.   S.   17  ;  13   Sup.  Ct  R.   738. 

Trickey  v.  Clark,  50  Oreg.  516 ;  93  Pac.  457. 

N.  W.  Pac.  Co.  v.  Bentley,  93  Pac.  150. 


CIVIL  PEACTICE.  441 

suit,  himself  supplies  the  evidence  on  the  want  of 
which  his  motion  was  founded,  he  cannot  have  a 
reversal  on  the  technical  ground  that  such  evidence 
was  not  before  the  court  when  the  non-suit  was 
asked14. 

Sec.  449  It  is  said,  too,  that  the  defendant 
waives  any  error  of  the  trial  court  in  overruling  his 
motion  for  a  non-suit  if  he  fail  to  renew  his  motion 
at  the  time  the  testimony  is  closed  and  after  he 
has  introduced  evidence.  The  same  authorities 
hold  him  to  a  waiver  if  he  introduce  evidence  after 
the  overruling  of  his  motion15.  But,  despite  the 
eminence  of  the  authorities  sustaining  the  doctrine, 
we  find  it  hard  to  perceive  its  justice.  The  true 
rule  ought  to  be  that  if  a  defendant  properly  pre- 
sents his  motion  for  a  non-suit  after  the  plaintiff 
has  presented  all  of  his  evidence,  he  should  not, 
from  the  mere  fact  of  introducing  his  side  of  the 
controversy,  be  precluded  from  having  a  review 
of  the  decision  of  the  trial  court  overruling  his  mo- 
tion, to  which  decision  he  has  duly  excepted.  This 
view  is  more  persuasive  in  the  light  of  the  law  that 
the  burden  is  upon  the  plaintiff  to  make  out  his  case 
upon  his  own  evidence.  Some  cases  have  ap- 
proached this  view  in  saying  that  the  denial  of  a 
motion  for  a  non-suit  before  the  introduction  of 
the  defendant's  evidence  will  not  prevent  the  grant- 
ing of  such  a  motion  after  the  defendant's  evidence 
has  been  introduced,  if  a  verdict  for  the  plaintiff 

14.  Barton  v.  Kane,  17  Wis.  38 ;   84  A.  D.  728. 
Bounsaball   v.   Pease,   45   Wis.   511. 
Hyland  v.   Sherman,   2  E.  D.  Smith  234. 

15.  Barrow  v.  Lumber  Co.,  14  Idaho  698  ;   90  Pac.  682. 
Dunham  Co.  v.  Dandelin,  143  111.  409 ;   32  N.  E.  258. 
Accident  Ins.  Co.  v.  Crandal,  120  U.  S.  527;  7  Sup.  Ct.  R.  685. 
G-aylord  v.  Gallagher,  20  N.  Y.  S.  682. 


442  THE  LAW  or  WAIVER. 

could  not  be  sustained  upon  the  evidence16.  Per- 
haps most  cases  hold  this,  but  they  do  not  go  far- 
ther. 

Sec.  450.  If  a  defendant  move  for  a  non-suit 
upon  one  ground,  he  must  stay  by  that  till  the  last, 
for  he  will,  by  thus  limiting  his  motion,  be  held  to 
have  waived  all  other  grounds  upon  which  he  might 
have  asked  for  a  non-suit.  As  was  said  in  one  case, 
a  party  cannot  avail  himself  of  a  different  position, 
on  appeal,  from  that  which  he  assumed  in  the  court 
below.  This  doctrine  is  well  established  and  is 
necessary  to  be  sustained  in  order  that  the  plaintiff 
may  not  be  misled  in  the  course  of  the  trial  and  in 
the  settlement  of  the  bill  of  exceptions  in  case  the 
non-suit  should  be  ordered17.  And  if  it  does  not 
appear  in  the  record  that  any  grounds  were  stated 
in  the  motion,  there  is  nothing  that  can  be  re- 
viewed18. 

Sec.  451.  But  as  in  all  other  cases  of  rulings 
or  decisions  by  the  court  during  the  progress  of  a 
trial,  the  party  against  whom  the  ruling  on  a  motion 
for  a  non-suit  goes  must  take  a  proper  and  timely 
exception  to  the  ruling  or  he  will  be  deemed  to  have 
waived  any  error  and  precluded  the  right  to  have 
the  ruling  reviewed19. 

16.  Fagundes  v.  Cent.  Ry.  Co.,  79  Cal.  97 ;  21  Pac.  437  ;  3  L.  R.  A.  824. 

17.  Mateer  v.  Brown,  1  Cal.  221 ;  52  A.  D.  303. 
Bronzan  v.  Drobaz,   98   Cal.   647 ;   29  Pac.   254. 

18.  Loring  v.  Stewart,  79  Cal.  200 ;  21  Pac.  651. 

19.  Wyatt  v.  Evins,   52  Ala.   285. 

McBride  v.  Latham,  79  Ga.  661 ;  4  S.  E.  928. 
Harper  v.  Dall,  92  N.  Car.  394. 
Stewart  v.  Davenport,  23  Minn.  346. 
Blair  v.   Pray,    103    111.   615. 
Brown  v.  Warren,  16  Nev.  228. 
Oakes  v.  Thornton,   28  N.  H.  44. 
Harrison  v.  Bank,  9  Mo.  161. 


CIVIL  PEACTICE.  443 

5.  DEMURRER  TO  THE  EVIDENCE  :- 
Sec.  452.  A  demurrer  to  the  evidence  is  analogous 
to  a  demurrer  to  the  facts  alleged  in  a  pleading. 
By  it  the  trial  court  is  called  upon  to  declare  the 
law  upon  the  facts  presented,  and  it  is  a  means  of 
taking  the  case  from  the  jury  when  the  facts,  after 
the  law  has  been  applied  to  them,  are  not  sufficient 
for  the  jury  to  find  a  verdict  upon  for  plaintiff. 

Sec.  453.  In  cases  of  a  demurrer  to  the  plain- 
tiff's evidence,  the  authorities  seem  to  hold,  as  in 
cases  of  a  motion  by  defendant  for  a  non-suit,  that 
if  the  defendant  demurs  to  the  plaintiff's  evidence 
and  his  demurrer  be  overruled,  he  waives  his  excep- 
tion to,  and  consequently  his  right  to  insist  upon, 
his  demurrer  by  afterward  introducing  his  evidence. 
And  it  is  said  that  the  rule  is  the  same  where  the 
defendant,  instead  of  demurring  to  the  evidence 
moves  for  a  peremptory  instruction  to  the  jury  to 
render  a  verdict  in  his  favor.  If,  after  such  request 
is  denied,  the  defendant  introduces  his  evidence,  he 
thereby  waives  any  objection  to  the  ruling  of  the 
court  in  denying  such  request20.  The  case  from  the 
federal  court  cited  in  the  preceding  note,  with  others 
of  like  holding,  is  cited  with  approval  in  Elliott's 
General  Practice21.  But  another  case  is  cited  in  the 
same  work  showing  an  opposite  view  of  the  same 
question22.  This  latter  case  is  from  a  Missouri 


20.  German  Ins.  Co.  v.  Frederick,  68  Fed.  144,  citing: 

Railroad  Co.  v.  Hawthorne,  144  U.  S.  202;  12  Sup.  Ct.  R.   591. 
Joilet  Co.  v.  Shields,  134  111.   209;   25  N.  E.   569. 

21.  2  Elliott's  Gen.  Prac.   865,  citing: 

Accident  Ins.  Co.  v.  Crandal,  120  U.  S.  527;  7  Sup.  Ct.  R.  685. 
Railroad  v.  Hawthorne,  144  U.  S.  202;   12  Sup.  Ct.  R.  591. 
Bradley  v.  Poole,   98   Mass.   169. 
Gluck  v.  Oox,  90  Ala.  331 ;   8  So.  161. 

22.  Weber  v.  Kans.  City  Co.,  100  Mo.  194;  12  S.  W.  804  and  13  S.  W. 

587;   18  A.  S.  R.  541. 


444  THE  LAW  or  WAIVER. 

court,  and  with  due  deference  to  the  authorities  first 
cited,  and  recognizing  their  controlling  weight,  it  yet 
occurs  to  the  writer  that  the  Missouri  case  has  the 
better  reasoning  and  the  better  principle  back  of  it. 
The  rule  supported  by  a  majority  of  cases  appears 
technical  in  its  application ;  the  reason  upon  which  it 
is  founded  being  that  by  a  demurrer,  joined  in  by 
both  parties,  the  case  is  effectually  taken  away  from 
the  jury,  and  it  is  difficult  to  see  how  a  case  can  be 
literally  taken  from  the  jury  and  yet  submitted  to 
them  for  decision.  But  it  should  be  remembered 
that  a  demurrer  to  the  evidence  is  simply  saying 
that  the  plaintiff  has  made  no  case,  a  proceeding 
analogous  to  a  demurrer  to  a  complaint  for  failure 
to  state  a  cause  of  action;  and  the  rule  being  uni- 
versal that  the  latter  demurrer  may  be  made  at  any 
time  and  is  never  waived,  similar  reasoning  dic- 
tates that  the  former  demurrer  be  given  the  same 
latitude  within  which  to  operate,  and  that  a  defend- 
ant should  be  permitted  to  demur  to  the  evidence 
at  the  close  of  the  plaintiff's  case,  introduce  his  evi- 
dence in  the  event  of  an  adverse  ruling,  demur 
again  at  the  close  of  the  trial  as  was  done  in  the 
Missouri  case,  and  even  to  insist  upon  it  on  appeal. 
Of  course,  by  introducing  his  evidence  after  the 
overruling  of  his  demurrer,  a  defendant  runs  the 
risk  of  supplying  the  defects  in  plaintiff's  case, 
which  would  be  fatal  to  his  demurrer;  but  this  is  a 
risk  he  should  be  permitted  to  take  if  he  see  fit  as 
it  cannot  work  damage  to  the  plaintiff,  whereas, 
the  other  rule  might  frequently,  through  the  mis- 
taken belief  of  counsel  in  the  justness  of  their  de- 
murrer, be  the  cause  of  grievous  hardships  to  liti- 
gants. 

Sec.  454.     Of  course,  after  the  court  rules  upon 


CIVIL  PRACTICE.  445 

a  demurrer  to  the  evidence,  it  is  necessary,  as 
in  all  other  decisions,  that  the  losing  party  ex- 
cept to  the  ruling  in  order  to  have  it  reviewed  on 
appeal ;  for  a  failure  to  so  except  is  deemed  an  aban- 
donment of  the  demurrer  and  a  waiver  of  any  right 
to  insist  upon  it  on  appeal. 

6.  DIRECTING  VEEDICT :— Sec.  455.  When 
the  plaintiff,  in  the  trial  of  a  civil  action,  has  intro- 
duced all  of  his  evidence  other  than  that  properly 
to  be  offered  as  rebuttal,  if  there  be  nothing  more 
than  a  mere  scintilla  of  evidence  in  support  of  the 
cause  of  action  alleged  in  the  complaint  or  petition, 
the  defendant  has  the  right,  upon  proper  applica- 
tion, to  have  the  court  direct  the  jury  to  render  a 
verdict  for  him.  The  plaintiff  has  the  same  right  to 
a  directed  verdict  at  the  close  of  the  defendant's 
evidence  if  there  be  nothing  more  than  a  scintilla  of 
evidence  in  support  of  the  alleged  defense.  But  in 
order  for  his  application  to  have  any  reserved  force 
or  future  effect,  the  party  moving  for  a  directed  ver- 
dict must  stand  squarely  upon  his  motion ;  for  if  he 
introduce  evidence  after  the  overruling  of  his  mo- 
tion, he  will  be  deemed  to  have  abandoned  it  and 
waived  his  right  to  insist  upon  the  ruling  of  the 
court  as  error23.  This  rule  does  not  mean,  however, 
that  after  a  party's  motion  to  direct  a  verdict  has 
been  overruled,  his  subsequently  introducing  evi- 
dence waives  his  right  to  again  make  the  same  re- 
quest at  the  close  of  all  the  evidence24.  But  the  lat- 

23.  Columbia  v.  Hawthorne,    144  U.   S.   202  ;    12    Sup.    Ct.   R.   591. 
Walker  v.  Windsor  Bank,  56  Fed.   76. 

Chicago  Co.  v.  Van  Vleck,   143  111.   480;   32  N.  E.   262. 
Poling  v.  Ohio,  etc.,  Co.,   38  W.  Va.   645;   18   S.  E.   782. 

24.  Weber  v.  Kans.  City  Co.,  100  Mo.  194;  12  S.  W.  804  and  13  S.  W. 

587;   18  A.   S.  R.   541. 

McPherson  v.  St.  Louis  Ry.  Co.,  97  Mo.  254 ;  10  S.  W.  84«. 
Rochat  v.  No.  Hudson  Co.,  49  N.  J.  L.  445  ;  9  Atl.  688. 


446  THE  LAW  OF  WAIVEE. 

ter  request  is  not  a  revival  of  the  former,  for  that 
has  been  abandoned  through  waiver;  it  is  merely  a 
new  motion  to  direct,  made  as  if  no  other  had  been 
interposed. 

7.    INSTRUCTIONS— 

A.  IN  GENERAL:— Sec.  456.  Among  the  in- 
numerable windings  and  turnings  occurring  in  the 
trial  of  almost  every  case  where  the  services  of  a 
jury  are  availed  of,  any  court  is  likely  to  fall  into 
error  in  the  matter  of  instructing  the  jury  as  to  the 
law  to  be  applied  to  the  facts  of  the  particular  case. 
For  this  reason,  it  is  necessary  for  counsel  to  assist 
courts  all  they  may  by  calling  to  their  attention  er- 
rors or  irregularities  in  the  giving  or  failing  to  give 
instructions,  so  that  they  may  be  avoided.  And  to 
the  same  extent  that  counsel  must  point  out  errors 
to  the  trial  court  in  its  instructions,  they  must  also 
make  request  for  instructions  in  any  particular  they 
deem  material,  for  otherwise  in  either  instance  any 
error  will  be  deemed  waived. 

B.  INSTRUCTIONS  GIVEN:— Sec.  457.  Fol- 
lowing the  rule  generally  applicable  to  all  subjects 
of  the  law,  a  party  having  cause  of  complaint 
against  instructions  given  by  the  court  must,  for  the 
benefit  of  the  court  and  his  opponent,  point  out  the 
alleged  defects  in  order  that  errors  may  be  cor- 
rected and  the  expense  and  annoyance  of  an  appeal 
and  a  second  trial  thus  obviated.  This  is  properly 
done  by  an  objection  to  the  instruction  in  which  is 
pointed  out  the  particular  reasons  rendering  the  in- 
structions improper.  This  objection  is  solely  for 
the  benefit  of  the  trial  court  and  the  opposing  party ; 
but  if  the  objector  desire  to  save  the  point  made  by 
him  for  the  purpose  of  having  alleged  errors  re- 


CIVIL  PEACTICE.  447 

viewed  in  an  appellate  court,  he  must,  in  the  event 
of  a  ruling  by  the  court  adversely  to  him,  duly  ex- 
cept to  such  ruling.  For  it  is  the  general  rule,  sub- 
ject only  to  statutory  qualification  in  any  case  of  de- 
parture, that  without  such  objection  taken  at  the 
trial  to  instructions  there  given,  error  cannot  be 
predicated  upon  them  in  the  appellate  court ;  and  by 
such  failure  to  object  and  to  point  out  to  the  trial 
court  what  is  claimed  as  error,  a  party  waives  the 
irregularities  or  defects  in  the  instructions25.  The 
rule  is  the  same  whatever  may  be  the  reasons  or 
grounds  of  complaint  rendering  the  particular  in- 
struction objectionable.  It  may  be  that  the  instruc- 
tions are  erroneous  in  that  they  do  not  state  the  law 
correctly26,  or  that  they  are  insufficient27,  or  that 

25.  State  v.  Bayne,  88  Mo.  604. 
Ritzenger  v.  Hart,  43  Mo.  App.  183. 
McDaneld  v.  Logi,   143  111.   487;   32  N.  E.   423. 
Pielke  v.  Chicago  Co.,  6  Dak.  444;  43  N.  W.  813. 
McSwain  v.  Ho  well,  29  Fla.  248  ;  10  So.  588. 
Chattahoochee  Co.  v.  Sullivan,  86  Ga.  50;  12  S.  E.  216. 
State  v.  Sheard,  35  La.  Ann.  543. 

People  v.  Caldwell,  107  Mich.  374;   65  N.  W.  213. 
Carter  v.  Mo.  Co.,  41  Pac.  356   (Okla.) 
St.  Louis,  etc.  Co.  v.  Vincent,  36  Ark.  451. 
Mo.  Co.  v.  Johnson,  44  Kans.  660;  24  Pac.  1116. 
Wheatley  v.  Waldo,  36  Vt.  237. 
Burnet  v.  Cavanaugh,  56  Neb.  190;  76  N.  W.  578. 
McFarland  v.  So.  Imp.  Co.,  107  N.  Car.  368. 
State  v.  Anderson,   20  Wash.  193  ;   55  Pac.  39. 
Dawson  v.  Coston,  IS  Colo.  493 ;  33  Pac.  189. 
Gum  v.  Murray,  6  Mont.  10. 

Thirkfleld  v.  Mtn.  View  Assoc.,  12  Utah  76  ;  41  Pac.  564. 
Jenkins  v.  Dean,  130  N.  Y.  275  ;  29  N.  E.  126. 
Territory  v.  O'Donnell,  4  N.  Mex.  196  ;  12  Pac.  743. 
Lawrence  v.  Bucklen,  45  Minn.  195  ;  47  N.  W.  655. 
Simonds  v.  Baraboo,   93  Wis.   40 ;    67   N.  W.   40. 
Leeper  v.  State,  29  Tex.  App.  63. 
Kennedy  v.  Cunningham,  59  Ky.  538. 

Eddy  v.  .Lafayette,  163  U.  S.  456  ;  16  Sup.  Ct.  R.  1082  ;  41  L.  Ed, 
225. 

26.  Williamson  v.  State,  30  Tex.  App.  330;  17  S.  W.  722. 
Bourke  v.  Van  Keuren,  20  Colo.  95;  36  Pac.  882. 

27.  Box  v.  Kelso,  5  Wash.  360;  31  Pac.  973. 


448  THE  LAW  or  WAIVER. 

i 

they  are  not  suited  to  the  issues28,  or  are  a  misstate- 
ment  of  the  issues29,  or  of  law30,  or  a  submission  of 
law  to  the  jury31,  or  that  they  are  a  comment  on  the 
weight  of  the  evidence32;  or  there  may  be  error  in 
failing  to  define  terms  used  in  instructions33,  or  in 
assuming  controverted  facts  to  be  uncontroverted34, 
or  the  instructions  may  be  subject  to  successful  at- 
tack for  any  other  reason  going  to  their  substance 
or  applicability  to  the  issues  involved ;  but  whatever 
the  cause  of  complaint  or  the  ground  of  objection, 
the  attention  of  the  court  must  be  called  thereto  at 
the  time  of  the  giving  of  the  defective  instructions, 
or  the  matter  cannot  be  urged  on  appeal35. 

Sec.  458.  As  well  as  being  deficient  in  some 
matter  of  substance,  instructions  may  be  erroneous 
in  matters  of  form,  the  rule  being  the  same  in  either 
case,  for  a  proper  objection  must  be  made  or  any  er- 
ror will  by  such  failure  to  object  be  waived.  Thus, 
the  fact  that  instructions  are  incomplete36,  or  uncer- 
tain and  ambiguous37,  or  that  they  are  inconsistent 

28.  Shaw  v.  N.  T.  etc.  Co.,   150  Mass.  182  ;  22  N.  B.  884. 
Stoner  v.  Devilbiss,  70  Md.  144;   16  Atl.  440. 

29.  Milmo  v.  Adams,  79  Tex.  526;  15  S.  W.  690. 

30.  Bergh  v.  Sloan.  53  Minn.  116  ;  54  N.  W.  943. 

31.  Stansbury  v.  Fogle,  37  Md.   369. 

32.  Atchison  Co.  v.  Worley,  25  S.  W.  478    (Tex.) 

33.  People  v.  Flynn,  73  Cal.  511 :  15  Pac.  102. 
Cogswell  v.  West.,  etc.,  Co.,  5  Wash.  46;  31  Pac.  411. 
Johnson  v.  Mo.  Pac.,  96  Mo.  340,  9  S  W.  790. 

34.  State  v.  Fenalson,  78  Me.  495;  7  Atl.  385. 

35.  Phelps  v.  Mayer,  15  How.  150   (U.  S.). 
Cheatham  v.  Wilbur,  1  Dak.  335;   46  N.  W.  580. 
Hayes  v.  Solomon,  90  Ala.  520;  7  So.  921. 
Spooner  v.  Handley,  151  Mass.  313 ;  23  N.  B.  840. 
Wray  v.  Carpenter,  16  Colo.  271 ;  27  Pac.  248. 
Burr  v.  Joy,  151  Mass.  295;  23  N.  E.  838. 
Humph  v.  Hiott,  35  S.  Car.  444  ;  15  S.  E.  235. 
Muetze  v.  Tuteur,  77  Wls.  236  ;  46  N.  W.  123. 

36.  Goldhammer  v.  Dyer,  7  Colo.  App.  29 ;  42  Pac.  17T. 

37.  People  v.  Olsen,  80  Cal.  122;  22  Pac.  125. 
Holm  v.  Sandberg,  32  Minn.  427;  21  N.  W.  416. 


CIVIL  PRACTICE.  449 

with  each  other38,  or  that  formal  requirements  have 
not  been  complied  with,  as  that  special  instructions 
are  not  numbered  and  signed39,  or  two  paragraphs 
were  written  on  the  same  page40,  or  that  the  instruc- 
tions are  misleading41 — any  of  these  defects,  while 
fatal  to  the  instructions,  if  properly  called  to  the  at- 
tention of  the  court,  will  be  held  waived  unless  ob- 
jected to  at  the  time  the  instructions  are  given. 

(1)  WAIVER  OF  WRITTEN  INSTRUC- 
TIONS:—Sec.  459.  Parties  having  the  right  to  a 
written  charge  to  the  jury  cannot  with  impunity  sit 
silently  by  and  see  that  right  transgressed.  To  be 
available  in  a  higher  court,  complaint  of  error  must 
be  predicated  upon  a  proper  and  timely  objection  in 
the  trial  court  to  the  manner  in  which  instructions 
are  given.  The  objection  must  be  timely  in  that  it 
must  be  registered  at  the  time  the  instructions  are 
given ;  and  it  must  be  proper  by  being  placed  on  the 
particular  ground  that  oral  instructions  are  not 
satisfactory;  otherwise,  the  irregularity  or  error 
will  be  held  waived42.  And  the  same  effect  was  held 
to  have  resulted  where  the  failure  to  make  a  timely 
objection  was  caused  by  an  agreement  between 
counsel  that  "at  any  time  within  which  a  stay  was 
granted  either  party  might  take  exceptions  to  the 
charges  or  any  part  thereof."  The  appellate  court 
said  that  it  is  not  competent  for  counsel  to  sit  by 
and  make  no  objection  to  oral  instructions  where 

38.  Williams  v.  So.  Ry.  Co.  110  Pac.  457 ;  42  Pac.  974. 

39.  Moffatt  v.  Tenney,  17  Colo.  189 ;  30  Pac.  348. 

40.  Davenport  v.  Cummings,  15  la.  219. 

41.  Pellum  v.  State,  89  Ala.  28 ;  8  So.  83. 

42.  Jacobs  v.  Mitchell,  2  Oolo.  App.  456 ;  SI  Pac.  235. 
Wright  v.  Gillespie,  43  Mo.  App.  244. 

Sackett's  Instructions,  14. 
Vanwey  v.  State,  41  Tex.  639. 
Leonardo  v.  Territory,  1  N.  Mex.  291. 


450  THE  LAW  OF  WAIVES. 

given  on  that  ground,  and  by  agreement  save  their 
exceptions  weeks  later.  Such  a  course  is  not  fair 
to  the  court  and  has  the  support  of  no  adjudicated 
case  so  far  as  we  know.  When  counsel  so  sit  by 
without  objection,  they  must  be  held  to  have  waived 
the  error43. 

(2)  EXCEPTIONS :— Sec.  460.  As  in  all 
other  cases  of  error  in  the  trial  of  a  cause,  an  objec- 
tion to  an  instruction  as  given  is  for  the  benefit  of 
the  trial  court,  to  call  to  its  attention  errors  therein 
so  that  same  may  be  properly  corrected.  But  on  ap- 
peal, the  objection  is  futile  unless  followed  in  due 
course  by  an  exception  to  the  court's  decision  over- 
ruling the  objection.  Without  this  exception,  the 
legal  conclusion  is  inevitable  that  the  objector  is  sat- 
isfied with  the  court's  ruling  and  has  abandoned  his 
objection.  While  this  is  the  regular  course  to  pur- 
sue, it  frequently  occurs  that  at  the  outset  the  ob- 
jection takes  the  form  of  an  exception,  the  party  ag- 
grieved simply  notifying  the  court  that  he  excepts 
to  the  opinion  and  direction  of  the  court44.  But 
whatever  form  it  may  assume,  the  rule,  except 
where  modified  by  statute45,  is  universal  that  a  fail- 
ure to  except  to  an  instruction  amounts  to  a  waiver 
of  any  irregularities  or  errors  therein,  which  means 

43.  Boss  v.   No.  Pac.  R.   Co.,   2  N.   Dak.    128;   49   N.  W.   656;   33   A. 

S.  R.  756. 

See:  Garton  v.  Bank,  34  Mich.  279. 
U.  S.  v.  Gough,  8  Utah  428;  32  Pac.  695. 

44.  2  Thompson,  Trials,  Art.    2395. 

46.     Wesson  v.  State,-  109  Ala.  61 ;  19  So.  514. 

Denver,  etc.  Ry.  v.  Bedell,  11  Colo.  App.  139;  54  Pac.  280. 
Marriner  v.  Jno.  L,.,  etc.  113  N.  Car.  52;  18  N.  E.  94. 
Little  River  Co.  v.  Fitzpatrick,  42  Oh.  St.  318. 
Gassert  v.  Bogk,  1  Mont.  585;  19  Pac.  281;  1  L.  R.  A.  240. 
Internat'l  Co.  v.  Click,  5  Tex.  Civ.  App.  224 ;  23  S.  W.  833. 


CIVIL  PRACTICE.  451 

that  same  cannot  be  nrged  on  appeal46.  And  the 
rule  is  the  same  where  the  error  is  in  the  modifica- 
tion of  a  requested  instruction47. 

Sec.  461.  It  is  a  general  rule  to  be  followed 
with  absolute  safety  and  to  be  departed  from  only 
with  prospects  of  peril,  that  where  an  exception  is 
taken  to  an  instruction  it  must  point  out  the  alleged 
defect,  and  must  be  directed  not  to  the  charge  as  a 
whole,  but  to  those  portions  considered  objection- 
able. For  a  general  exception  is  not  available  as  to 
specific  defects  if  any  one  of  the  propositions  in  the 

46.  Lowell  v.  Gathright,  97  Ind.  313. 
McSwain  v.  Howell,  29  Fla.  248. 

Jackson  v.  Com.,  12  Ky.  L.  R.  575  ;  14  S.  W.  677. 

Lobdell  v.  Hall,  3   Nev.   507. 

McCart  v.  Squire,  150  Mass.   484  ;   23  N.  E.  323. 

City  v.  Smith,  47  Neb.  408;  66  N.  W.  538. 

Packard  v.  Bergen  Co.,  54  N.  J.  L.  553  ;  23  Atl.  722. 

State  v.  Hilsabeck,  132  Mo.  348;  34  S.  W.  38. 

Lefkow  v.  Allred,  54  Mo.  App.   141. 

Cram  v.  Gas  Co.,  75  Hun  316. 

Georgia  Ry.  Co.  v.  West,  66  Miss.  310;  6  So.  207. 

Williams  v.  So.  Pac.  Ry.,  110  Cal.  457  ;  42  Pac.  974. 

Werner  v.  Jewett,  54  Kans.  530;  38  Pac.  793. 

Territory  v.  O'Donnell,  4  N.  Mex.  66  ;  12  Pac.  743. 

Dugan  v.  Thomas,  79  Me.  221 ;   9  Atl.  354. 

Chemical  Co.  v.  Johnson,  101  N.  Car.  223  ;   7  S.  E.  770. 

Berry  v.  Smith,  2  Okla.  345  ;  35  Pac.  576. 

State  v.  Williams,  13  Wash.  33'5  ;  43  Pac.  15. 

Everett  v.  Summer,  32  Oh.  St.  562. 

Leach  v.  Hill,  97  la.  81  ;  66  N.  W.  69. 

Nor  fork  Co.  v.  Hoover,  79  Md.  253  ;  29  Atl.  994. 

Willard  v.   Petitt,    153   111.    663;    39   N.  E.    991. 

Hawley  v.  Harran,  79  Wis.  379;  48  N.  W.  676. 

Tucker  v.  U.  S.,  151  U  S.  164. 

Hedden  v.  Iselin,  142  U.  S.  676. 

Little  Rock  Co.  v.  Dallas  Co.,  66  Fed.   522. 

47.  Tracey  v.  State,  46  Neb.  361 ;  64  N.  W.  1069 ;  and  It  is  the  same 

where  the  error  is  technical  in  its  nature,  as  a  failure  to 
number  the  instructions:  Moffat  v.  Teeney,  17  Colo.  189;  SO 
Pac.  348;  Jolly  v.  State,  43  Neb.  587;  62  N.  W.  300;  Cunning- 
ham v.  Seattle  Elec.  Co..  3  Wash.  471;  28  Pac.  745;  or  failure  of 
the  judge  to  sign  the  instructions;  Jones  v.  Greeley.  25  Fla.  629; 
C  So.  448.- 


452  THE  LAW  or  WAIVER. 

charge  is  correct48.  And  the  principle  that  objec- 
tion or  exception  to  any  proceeding  on  one  ground 
only  is  a  waiver  of  all  other  grounds  of  complaint 
is  applicable  to  instructions.  For  it  is  said  that  a 
party  excepting  must  make  his  exception  so  specific 
that  the  matter  relied  on  as  error  will  be  apparent 
to  his  adversary  and  to  the  primary  court.  For  his 
adversary,  having  his  attention  directed  to  the  spe- 
cial matter  alleged  erroneous,  has  the  right  and 
privilege  of  waiving  such  matter  rather  than,  by  in- 
sisting on  it,  incur  the  hazard  and  delay  of  an  ap- 
peal to  a  superior  tribunal.  The  court,  having  its 
attention  specially  directed  to  the  erroneous  mat- 
ter, might  be  satisfied  of  the  error  into  which  it 
may  have  fallen  through  inadvertence,  and  could 
voluntarily  correct  it  by  a  reversal  of  its  rulings,  and 
thus  protect  the  parties  excepting  from  all  injury49. 
And  one  ground  of  exception  only  being  specified  at 
the  trial,  no  others  will  be  considered  on  appeal,  for 
the  conclusive  presumption  is  that  others  are 
waived50. 

48.  Fordyce  v.  Russell,  59  Ark.  312;  27  S.  W.  82. 
Willis  v.  State,  93  Ga.  208 ;  19  S.  E.  43. 
Campbell  v.  Arruth,  32  Fla.  264 ;  13  So.  432. 
Crosby  v.  Wilson,  53  Kans.  565  ;   36  Pac.  985. 
Reeves  v.  Harrington,  85  la.  741;  52  N.  W.  517. 
Cavallaro  v.  Tex.  etc.  Co.,  110  Cal.  348;  42  Pac.  918. 
Hickam  v.  People,   137  111.  75;   27  N.  E.  88. 
Reynolds  v.  Boston  Ry.,  43  N.  H.  580. 

Gross  v.  Hays,  73  Tex.  515  ;  11  S.  W.  523. 
Lichty  v.  Tannatt,  11  Wash.  37;  39  Pac.  260. 
Newport  News  v.  Pace,  158  U.  S.  36. 
Green  v.  Hanson,  89  Wis.  597 ;  62  N.  W.  408. 
People  v.  Hart,  10  Utah  204;  37  Pac.  330. 
Main  v.  Oien,  47  Minn.  89 ;  49  N.  W.  523. 
Com.  v.  Tolman,  149  Mass.  229;  21  N.  E.  377. 
Hooks  v.  Houston,  109  N.  Car.  623;  14  S.  E.  40. 

49.  Irvin  v.  State,  50  Ala.  181,  cited  in: 
8  Am.  &  Eng.  Enc.  L.  264. 

60.     Phipps  v.  Pierce,  94  N.  Car.  514. 

Concoran  v.  Harran,  55  Wis.  120;  12  N.  W.  468. 
Sanford  v.  Gates,  38  Kans.  405;   16  Pac.   807. 


CIVIL  PRACTICE.  453 

Sec.  462.  The  cases  in  which  the  above  points 
have  been  decided  are  almost  innumerable,  and  the 
citation  of  them  all  would  only  present  a  mass  of 
adjudications  for  counsel  to  wade  through,  all  of 
which,  through  their  various  intermingling  of  facts, 
present  a  parallel  tendency  in  the  same  direction. 
But  a  few  illustrations  will  .serve  to  show  more 
clearly  the  application  of  the  principles  outlined. 
Thus,  if  the  court  fail  to  write  the  word  "given" 
on  an  instruction  as  required  by  law,  this  error  is 
waived  unless  that  ground  of  complaint  be  specified 
in  an  exception51.  And  the  same  is  true  of  failure 
of  the  court  to  define  malice  in  a  case  where  that 
definition  is  required52,  and  where  the  exception  was 
that  the  verdict  was  contrary  to  the  instructions  of 
the  court,  this  does  not  raise  the  question  of  the  le- 
gality of  the  instructions53.  Or,  where  the  excep- 
tions are  on  the  ground  that  the  court  did  not  per- 
mit a  question  of  fact  to  be  submitted  to  the  jury, 
the  exception  is  unavailing  if  there  was  no  ques- 
tion of  fact  involved54.  So,  a  general  exception  will 
not  present  the  question  of  the  completeness  of  the 
instructions55.  And  it  may  be  stated  as  a  general 
rule  that  a  general  exception  will  be  insufficient  to 
present  any  special  ground  of  error,  and  that  such 
will  be  waived  and  ineffective  if  any  part  of  the  in- 
structions is  correct  or  applicable56.  So,  where  the 

51.  Omaha  Co.  v.  Hansen,  32  Neb.  449 ;  49  N.  W.  456. 

52.  People  v.  Thiede,  11  Utah  241 ;  39  Pac.  837. 

53.  Britt  v.  Aylett,  11  Ark.  475. 

54.  Guggenheim  v.  Kirchofer,  66  Fed.  755. 

55.  Hamilton  v.  Great  Falls  Co.,  17  Mont  334  ;  42  Pac.  860 ;  43  Pat 

713. 

56.  Goodwin  v.  Perkins,  39  Vt  598. 

Grantz  v.  Price,  130  Pa.  St.  415 ;  18  Atl.  646. 
Rock  v.  Indian  Mills,  142  Moss.  522  ;  8  N.  B.  401. 
Whelan  v.  Georgia,  etc.  Co.,  84  Ga.  506 ;  10  S.  E.  1091. 
Kearney  v.  Snodgrass,  12  Oreg.  317;  7  Pac.  309. 


454  THE  LAW  OP  WAIVER. 

general  exception  is  to  the  whole  charge,  it  will  be 
of  no  avail  if  any  portion  of  the  charge  is  correct57. 

C.  INSTEUCTIONS  EEFUSED :— Sec.  463. 
It  is  the  duty  of  the  court,  when  instructions  are 
given  by  it,  to  cover  fully  and  fairly  the  points  in- 
volved in  the  case  on  trial.  But  if  the  court  omit  to 
instruct  as  to  any  of  the  points  at  issue  between  the 
parties,  it  is  the  duty  of  counsel  to  request  instruc- 
tions on  the  particular  point  desired  by  them  to  be 
presented  to  the  jury.  If  counsel  fail  to  ask  for 
such  instructions  as  they  think  should  be  given,  they 
will  be  held  to  have  been  satisfied  and  to  have 
waived  any  error  of  the  court  in  the  omission,  the 
consequence  being  that  an  appeal  cannot  be  predi- 
cated upon  such  error58.  In  this  connection,  a  dis- 
tinction exists  and  must  be  observed  between  the 
giving  of  erroneous  instructions  and  the  failure  to 

Maling  v.  Crummey,  5  Wash.  222  ;  31  Pac.  600. 

Frost  v.  Grizzly  Co.,  102  Cal.  525;   36  Pac.  929. 

Serviss  v.  Stockstill,  30  Oh.  St.  418. 

Burton  v.  West  Jersey  Co.,  114  U.  S.  474. 

State  v.  Chopin,  10  La.  Ann.  458. 

Probst  v.  Trustees,  3  N.  Mex.  373  ;  5  Pac.  702. 
67.     Beall  v.  Territory,  1  N.  Mex.  507. 

Wallace  v.  Bxc.  Bank,  126  Ind.  265;  26  N.  E.  175. 

Welcome  v.  Mitchell,  81  Wis.  566  ;  51.  N.  W.  1080. 

Post  v.  Bird,  28  Fla.  1 ;  9  So.  888. 

Fleming  v.  L.  D.  Co.,  48  Kans.  773  ;  30  Pac.  166. 

Brooks  v.  Dutcher,  22  Neb.  644  ;  36  N.  W.  128. 

And  see  extended  note  In  99  A.  D.  114,  to  the  case  of 

Strohn  v.  Detroit  Co.,  23  Wls.  126. 
58.     Territory  v.  Caldwell,  14  N.  Mex.  535  ;  98  Pac.  167. 

Mead  v.  State,  53  N.  J.  L.  601 ;  23  Atl.  264. 

U.  S.  v.  De  Amador,  6  N.  Mex.  173  ;  27  Pac.  488. 

Blount  v.  State,  30  Fla.  287. 

Darby  v.  Hayford,  56  Me.  246. 

Com.  v.  Zappe,  153  Pa.  St.  498 ;  26  Atl.  16. 

McOadden  v.  Lowenstein,  92  Tenn.  614;  22  S.  W.  426. 

State  v.  Schleller,  130  Mo.  510 ;  32  S.  W.  976. 

Silberberg  v.  Pearson,  75  Tex.  287;  12  S.  W.  850. 

Texas  Co.  v.  Ludlam,  26  S.  W.  430   (Tex.) 

Frick  v.  Wilson,  36  S.  Car.  65;  15  S.  E.  331. 

Johnson  v.  Sherwood,  45  Minn.  9 ;  47  N.  W.  262. 

Small  v.  Williams,  87  Ga.  681 ;  13  S.  E.  589. 


CIVIL  PRACTICE.  455 

give  correct  and  adequate  instructions.  In  the  for- 
mer case  the  objection  is  sufficiently  called  to  the  at- 
tention of  the  trial  court  by  a  single  objection  and 
exception,  and  it  is  not  necessary  to  request  and 
submit  a  correct  instruction  to  be  given  in  the  place 
of  the  erroneous  one.  But  in  the  case  of  a  mere  fail- 
ure to  give  correct  instructions  covering  the  case, 
the  error  is  not  available  on  appeal  in  the  absence 
of  a  request  by  the  appellant  for  a  proper  instruc- 
tion59. And  where  the  charge  is,  for  any  reason, 
incomplete,  incorrect  or  unsatisfactory,  the  party 
dissatisfied  with  it  ought,  before  the  jury  leaves 
the  bar,  to  ask  the  court  to  make  it  correct.  He 
should  not  acquiesce  in  the  instruction,  take  his 
chances  with  the  jury,  and,  after  the  verdict  is 
against  him,  claim  the  benefit  of  error  in  the  in- 
structions60. The  rule  is  the  same  whatever  the 
cause  rendering  the  charge  erroneous. 

Sec.  464.  Thus,  error  cannot  be  predicated  on 
the  fact  that  an  instruction  is  obscure  where  a  party 
complaining  fails  to  ask  for  an  explanatory  or  qual- 
ifying charge61,  and  the  same  is  true  if  the  charge 
be  misleading62,  although  this  latter  is  contrary  to 
some  decisions  which,  with  better  reason,  hold  that 
if  the  charge  be  clearly  misleading  the  case  should 
be  reversed  even  though  correct  instructions  were 
not  requested63.  The  rule  is  applied,  however, 

59.  1  Blashfleld's  Instructions,  Art.  362. 

60.  Schuylkill  Co.  v.  Munson,  14  Wall.  442   (U.  S.) 

61.  Fife  v.  Com.  29  Pa.  429. 
Stock-well  v.  Byrne,  22  Ind.  6. 

62.  Towns  v.  State,  111  Ala.   1 ;  20  So.  698. 
Wyman  v.  Hart,  12  How.  Pr.  122. 

Churchill  v.  Gronewig,  81  la.  449  ;  46  N.  W.   1063. 
Jones  v.  State,  49  Ind.  549. 
Milne  v.  Ponchertrain,   9   La.   257. 

63.  Pierson  v.  Duncan,  162  Pa.  St.  187 ;  29  Atl.  733. 
Internat.  Co.  v.  Phillips,  63  Tex.  590. 

Hill  v.  Newman.  47  Ind.   187. 


456  THE  LAW  OF  WAIVER. 

where  the  instructions  are  vague,  indefinite  and  un- 
certain, for  it  is  clearly  the  duty  of  him  who  is  dis- 
satisfied to  present  an  instruction  which  meets  with 
his  approval  and  request  that  it  be  presented  to  the 
jury,  failing  in  which  he  will  be  held  to  any  error 
on  account  of  such  elements  in  the  charge64.  And  a 
request  for  correct  instructions  is  necessary  in  case 
of  ambiguity65,  or  where  the  court  fails  to  explain 
or  define  terms66,  such  as  ''adverse  possession"67, 
"reasonable  care  and  diligence"68,  "reasonable 
doubt"69,  "negligence,"  "gross  negligence,"  "ordi- 
nary care,"  "unfitness,"  and  so  forth70.  And  it  is 
accessary  to  make  a  request  for  a  proper  instrue- 
:ion  as  to  probable  cause  in  an  action  for  malicious 
prosecution71 ;  or  as  to  mental  capacity  where  that  is 
involved72;  notice73;  adverse  possession74;  statute 
3f  limitations75 ;  fellow  servants76 ;  measure  or  miti- 

64.  Bousel  v.  Stanger,  73  Tex.  670;  11  S.  W.  906. 
State  v.  Falk,  46  Kans.  500. 

Clapp  v.  Minn.,  etc.  Co.,  36  Minn.  6 ;  29  N.  W.  340. 
People  v.  Olsen,  80  Cal.  122 ;  22  Pac.  125. 

65.  McQuillan  v.  Seattle,  13  Wash.  600  ;  43  Pac.  893. 
Stratton  v.  Staples,  59  Me.  94. 

Schoellhamer  v.  Rometsch,  26  Oreg.  394;  38  Pac.  344. 

66.  State  v.  Potter,  15  Kans.  302. 

Texas,  etc.  Ry.  v.  O'Donnel,  58  Tex.  27. 

67.  Robinson  v.  Mclver,  23  S.  W.  915    (Tex.). 

68.  Johnson  v.  Mo.  Pac.  Ry.,  96  Mo.  340 ;  9  S.  W.  790. 

69.  People  v.  Plynn,  73  Cal.  511;  15  Pac.  102. 

70.  Kelley  v.  Cable  Co.,   7  Mont   70. 

Galveston  Co.  v.  Arispe,  81  Tex.  517;  17  S.  W.  47. 
Quirk  v.  St.  Louis  Co.,  126  Mo.  279  ;  28  S.  W.  1080. 

71.  Peterson  v.  Toner,  80  Mich.  350 ;   45  N.  W.  346. 
Lueck  v.  Heisler,  87  Wis.  644;  58  N.  W.  1101. 

72.  Berryman  v.  Schumaker,  67  Tex.  312;  3  S.  W.  46. 

73.  Brown  v.  Foster,  41  S.  Car.  118. 
Street  v.  Lynch,  38  Ga.  631. 

74.  Robinson  v.  Mclver,  23  S.  W.  915    (Tex.) 
Wood  v.  Figard,  28  Pa.  St.  403. 

75.  Hocker  v.  Day,  80  Tex.  529 ;  16  S.  W.  322. 

76.  Phila.  &  R.  Ry.  v.  Trainer,  137  Pa.  148 ;  20  Atl.  632. 


CIVIL  PKACTICE.  457 

Cation  of  damages77;  scope  of  employment78;  false 
representations79 ;  effect80 ;  sufficiency81  or  purpose82 
of  evidence;  explanation  of  pleadings83;  and  where 
the  court  fails  to  submit  to  the  jury  an  issue  raised 
by  the  pleadings84;  and  it  is  the  general  rule  that 
in  order  to  raise  the  point  that  instructions  are  in- 
sufficient, a  request  for  proper  instructions  should 
be  made85.  The  rule  is  not,  however,  universal ;  for 
in  some  states  by  statute  the  court  is  required  to 
submit  the  law  fairly  and  fully  to  cover  the  case, 
and  his  failure  to  do  so  is  error  for  which  a  reversal 
will  be  ordered,  even  though  no  requests  for  instruc- 
tions were  made.  But  even  if  this  prevail  by  statute 
or  by  rule,  if  the  instructions  given  fairly  and  sub- 
stantially cover  the  issues  involved,  the  failure  to 
give  a  particular  instruction  is  not  reversible  error 
unless  a  request  for  it  is  made. 

(1)     EXCEPTIONS  TO  BEFUSAL  TO  IN 
STEUCT:— Sec.  465.     A  party  presenting  to  the 
court  an  instruction  with  the  request  that  it  be  sub- 
mitted to  the  jury  has  not  thereby  perfected  his 

77.  Browning  v.  Wabash  Ry.,  124  Mo.  55  ;  27  S.  W.  644. 
Page  v.  Flnley,  8  Oreg.  45. 

Buzzell  v.  Emerton,  161  Mass.  176  ;  36  N.  E.  796. 

78.  Vernon  v.  Cornwell,  104  Mich.  62  ;   62  N.  W.  175. 

79.  Davis  v.  Elliott,   15  Gray  90    (Mass.) 

80.  Hollywood  v.  Reed,  55  Mich.  308. 

Rowland  v.  Bartlett,  86  Ga.  669 ;  12  S.  E.  1068. 

81.  Gottstein  v.  Seattle  Co.,  7  Wash.  424;  35  Pac.  133. 
Louisville  Co.  v.  Spencer,  149  111.  97;  36  N.  E.  91. 

82.  People  v.  Gray,  66  Cal.  276 ;  5  Pac.  240. 
Stone  v.  Redman,  38  Me.  578. 

Dow  v.  Merrill,  65  N.  H.  107  ;  18  Atl.  317. 
Shumard  v.  Johnson,  66  Tex.  70  ;  17  6.  W.  398. 

83.  Roebke  v.  Andrews,  26  Wis.  312. 

Conrad  v.  Kinzie,  105  Ind.  281 ;  4  N.  E.  863. 

84.  Newton  v.  Whitney,  77  Wis.  515  ;   46  N.  W.  882. 
Brinzer  v.  Longenecker,  169  Pa,  St.  51 ;  32  Atl.  60. 
Lynch  v.  Johnson,  109  Mich.   640;   67  N.  W.  908. 

85.  See :  1    Blashfleld,    Instructions,    and    the    several  hundred  cases 

there  cited. 


458  THE  LAW  OF  WAIVER. 

right  to  have  reviewed  the  ruling  of  the  court  refus- 
ing to  submit  such  instruction,  but  he  must,  after 
such  refusal,  register  a  proper  and  timely  exception, 
for  without  such  exception  he  will  be  held  to  have 
waived  any  error  of  the  court  in  its  ruling  and  to 
have  abandoned  his  request86.  This  is  only  another 
application  of  the  general  rule  requiring  a  party 
dissatisfied  with  any  ruling  of  the  court  to  give 
notice  of  such  dissatisfaction  by  means  of  his  ex- 
ception, thereby  indicating  to  the  court  and  op- 
posing counsel  that  he  intends  to  present  the  matter 
for  review  in  a  higher  court87. 

Sec.  466.  A  party  excepting  to  the  ruling  of  a 
court  refusing  to  submit  an  instruction  must  point 
out  specifically  the  grounds  upon  which  his  excep- 
tion is  based,  for  a  general  exception  will  be  of  no 
avail.  And  an  exception  made  on  one  ground  can- 
not on  appeal  be  switched  to  some  other,  for  the 
statement  of  one  is  a  waiver  of  all  others  not  called 
to  the  attention  of  the  trial  court,  and  such  others 
will  not  be  considered  by  the  appellate  court88.  And 

86.  Bonino  v.  Caledonio,  144  Mass.  299  ;  11  N.  B.  98. 
Thrasher  v.  Postel,  79  Wls.  503;  48  N.  W.  600. 
Territory  v.  Caldwell,  14  N.  Mex.  635;  98  Pac.  167. 
People  v.  Northey,  77  Cal.  618;  19  Pac.  865;  20  Pac.  12». 
Burns  v.  People,  126  111.  282  ;  18  N.  B.  550. 

Kearney  v.  Smith,  47  Neb.  408;  66  N.  W.  538. 

Poullain  v.  Poullain,  79  Ga.  11 ;  4  S.  E.  92. 

Post  v.  Bird,  28  Fla.  1 ;  9  So.  888. 

Crane  v.  Schloss,  14  N.  Y.  Supp.  886. 

Cent.  Vt.  Ry.  v.  Soper,  59  Fed.  879. 

Du  Souchett  v.  Dutcher,  113  Ind.  249;  15  N.  E.  459. 

87.  Keeling  v.  Kuhn,   19   Kans.   441. 

Leahy  v.  So.  Pac.  Ry.,  65  Cal.  151;  3  Pac.  622. 
East  St.  Louis  Ry.  v.  Stout.  150  111.  9 ;  36  N.  E.  96S. 
State  v.  Brewer,  70  la.  384 ;  30  N.  W.  646. 
Stewart  v.  Murray,  92  Ind.  548. 

88.  Price  v.  Burlington  Co.,  42  la.  16. 
Sanford  v.  Gates,  38  Kans.  405 ;  16  Pac.  807. 
Phipps  v.  Pierce,  94  N.  Car.  514. 

Cole  v.  Curtis,  16  Minn.  182. 


CIVIL  PRACTICE.  459 

it  is  obvious  that  the  refusal  of  each  separate  in- 
struction must  be  properly  except ed  to,  for  an  ex- 
ception to  one  necessarily  raises  no  question  as  to 
another89. 

D.  TIME  FOE  EXCEPTIONS:— Sec.  467. 
The  general  rule  being  that  any  decision  of  the  court 
in  the  trial  of  an  action  detrimental  to  a  party  must 
be  objected  to  or  excepted  to  by  him  at  the  earliest 
possible  moment,  which  is  usually  at  the  time  the 
ruling  is  made,  it  follows  that  where  an  objection- 
able instruction  is  given,  or  a  requested  one  refused, 
exception  must  be  taken  to  the  giving  or  refusing  at 
the  tune,  or  any  error  in  the  court's  ruling  will  be 
waived,  unless  by  statute  exceptions  are  rendered 
unnecessary;  and  even  where  such  provision  is 
made  by  statute,  it  is  held  that  some  kind  of  objec- 
tion must  be  presented  to  the  court  in  apt  time  or 
error  of  the  court  cannot  be  urged  on  appeal90.  The 
reason  of  the  rule  is  the  same  as  in  all  other  invol- 
untary waivers — a  party  having  a  right  must  take 
advantage  of  it,  or  if,  being  deprived  of  a  right, 
must  register  a  protest,  or  if,  failing  in  either  of 
these  as  the  case  may  be,  he  will,  as  a  matter  of  law, 
be  deemed  satisfied  with  the  proceeding  and  cannot 
later  object  thereto. 

Sec.  468.  Thus,  while  on  appeal,  in  the  absence 
of  any  showing  to  the  contrary,  it  will  be  presumed 
that  exceptions  to  instructions  were  taken  in  proper 

89.  Ryall  v.  Cent  Pac.  Ry.,  76  Cal.  474;  18  Pac.  430. 

Columbia  Co.  v.  Nat.  Bank  of  Com.,  62  Minn.  224  ;  53  N.  W.  1061. 
Pound  v.  Port  Huron  Co.,  54  Mich.  13  ;  19  N.  W.  570. 
Jumper  v.  Com.  Bank,  39  S.  Car.  296 ;  17  S.  B.  980. 

90.  City  of  Durango  v.  Luttrell,  18  Colo.  124;  31  Pac.  853. 
Moffatt  v.  Tenney,  17  Colo.  189;  30  Pac.  348. 


460  THE  LAW  OP  WAIVER. 

time91,  if  the  record  show  that  an  exception  was  not 
taken  until  after  verdict,  the  exception  then  taken 
will  be  too  late  and  the  party  taking  it  will  be  held 
to  have  waived  the  court's  error  in  the  giving  of 
the  instruction92.  And  the  same  rule  prevails  where 
the  exception  is  to  the  refusal  of  the  court  to  in- 
struct93. And  whether  the  exception  be  to  the  giv- 
ing or  refusal  of  instructions,  it  is  held  that  any  er- 
ror of  the  court  in  the  giving  or  refusal  is  waived 
if  the  exception  be  not  taken  until  after  the  jury  re- 
tire94, or  until  after  part  of  the  jury  retire95;  and 
the  same  rule  applies  where  the  exception  is  not 
taken  until  after  a  verdict  has  been  delivered  into 
court96,  or  is  taken  for  the  first  time  in  a  motion  for 

91.  Strlckenfaden  v.  Zipprlck,  49  111.  286. 
Wakeman  v.  Lyon,  9  Wend.  241   (N.  T.). 

92.  Thiede  v.  Utah,  159  U.  S.  510. 

State  v.  Hart,  116  N.  Car.  976 ;  20  S.  B.  1014. 
Bynum  v.  So.  Pump  Co.,  63  Ala.  462. 
Barker  v.  Todd,  37  Minn.  370  ;  34  N.  W.  895. 
Wustland  v.  Potterfield,  9  W.  Va.  438. 

93.  Holtey  v.  State,  75  Ala.  20. 

State  v.  Debnam,  98  N.  Car.  712 ;  3  S.  B.  742. 

See:  State  v.  Varner,  115  N.  Car.  744;   20  S.  B.  618. 

94.  Barnewall  v.  Murrell,  108  Ala.  366 ;  18  So.  831. 
Garoutte  v.  Williamson,  108  Cal.  135 ;  41  Pac.  13  and  413. 
City  of  Durango  v.  Luttrell,  18  Colo.  124;  31  Pac.  853. 
Gibson  v.  Sullivan,  18  Neb.  558;   26  N.  W.  368. 
Schroeder  v.  Rinehard,  25  Neb.  75 ;  40  N.  W.  593. 
Butler  v.  Cams,  37  Wls.  61. 

State  v.  Burk,  89  Mo.  635  ;  2  S.  W.  10. 

Allen  County  v.  Boyd,  31  Kans.  765 ;  3  Pac.  523. 

Gibson  v.  State,  26  Fla.  109 ;  7  So.  376. 

McDonald  v.  U.  S.,  63  Fed.  426. 

Barton  v.  Forsyth,  20  How.  532. 

Shepherd  v.  State,  36  Fla.  374;  18  So.  773. 

Dozier  v.  German,  30  Mo.  216. 

Branton  v.  O'Briant,  93  N.  Car.  99. 

95.  Spooner  v.  Cuminings,  151  Mass.  313  ;  23  N.  E.  839. 
»«.     State  v.  Debnan,  98  N.  Car.  712 ;  8  S.  B.  742. 

State  v.  O'Donald,  4  Idaho  343 ;  29  Pac.  566. 
Wash.   etc.  v.  Hobson,   15   Gratt.   122. 
Mich.  Ins.  Bank  v.  Eldred,  143  U.  S.  293. 
Barker  v.  Todd,  37  Minn.  370;  34  N.  W.  895. 


CIVIL  PRACTICE.  461 

a  new  trial97,  or  on  appeal98.  These  rules  are  sup- 
planted in  some  states  by  statutory  provisions,  or  at 
least  modified  in  their  application.  Thus,  in  one 
state  exceptions  may  be  taken  at  any  time  before  the 
entry  of  final  judgment99,  in  another  within  three 
days  after  verdict100,  in  another  at  any  time  before 
verdict1,  in  another  the  exception  may  be  taken  in  a 
motion  for  a  new  trial2. 

8.  VERDICT :— Sec.  469.  If  a  verdict  as  re- 
turned by  a  jury  in  the  trial  of  a  cause  is  unsatis- 
factory to  either  party  for  any  reason,  such  party 
must  make  a  proper  and  timely  objection  or  the  de- 
fect in  the  verdict  will  be  held  waived  and  the  party 
precluded  from  questioning  it  on  appeal  as  to  any 
matters  that  could  have  been  called  to  the  attention 
of  the  trial  court.  The  objection  must  be  specific 
as  to  the  matters  or  grounds  rendering  it  defective, 
for  a  general  or  blanket  objection  will  be  insufficient 
to  present  any  question  for  consideration3.  The 
rule  is  the  same  whatever  the  objection  to  or  defect 
in  the  verdict.  Thus,  upon  appeal  error  cannot  be 
predicated  upon  a  defect  in  the  form  of  the  verdict 
unless  an  objection  was  made  and  the  defect  called 
to  the  attention  of  the  trial  court  and  an  exception 
duly  saved  to  the  decision  of  the  court  overruling 

97.  State  v.  Myers,  99  Mo.  107;  12  S.  W.  516. 
Louisville  Co.  v.  Hart,  119  Ind.  273;  21  N.  E.  753. 
Harrison  v.  Chappell,  84  N.  Car.  258. 

Vanwey  v.  State,  41  Tex.  639. 

State  v  Halford,  104  N.  Car.  874;  10  S.  E.  524. 

98.  Pish  v.  Chicago  Co.,  81  la.  310  ;  46  N.  W.  998. 

99.  Collins  Ice  Cream  Co.  v.  Stephens,  189  111.  200;  59  N.  E.  524. 
Uhe  v.  Chicago  Co.,  4  S.  Dak.  505  ;  57  N.  W.  484. 

100.     Maxon  t>.  Chicago  Co.,  67  la.  226  ;  25  N.  W.  144. 

1.  Vaughn  v.  Ferral,  57  Ind.  182. 

2.  Barney  v.  Scherling,  40  Miss.  320. 

3.  Mahoney  v.  Van  Winkle,  21  Cal.  553. 
Fickle  v.  St.  Louis  Co.,  54  Mo.  219. 


462  THE  LAW  OF  WAIVER. 

the  objection4,  whether  the  verdict  be  general  or  spe- 
cial5. It  has  been  held,  however,  that  no  exception 
is  necessary6.  The  rule  is  equally  applicable  where 
the  defects  in  a  verdict  are  other  than  as  to  form, 
as  where  it  is  contrary  to  or  not  supported  by  the 
evidence7,  or  is  inadequate8  or  excessive  in  amount9. 
9.  FINDINGS  OF  FACT :— Sec.  470.  Where 
findings  of  fact  are  made,  if  they  be  objectionable 
the  party  aggrieved  must  except  to  them  in  the 
court  where  they  are  filed,  for  without  such  excep- 
tion no  review  of  the  findings  can  be  had  on  appeal ; 
this  is  consonant  with  the  general  rule  requiring  an 
exception  for  the  review  of  any  question  by  an  ap- 
pellate tribunal,  and  without  the  exception,  error 
is  considered  waived10.  If  an  exception  be  not  taken 

4.  Kuhlman    v.    Williams,    1    Okla.    136 ;    28    Pac.    867. 
Sternberger  v.  Bernheimer,   121  N.  Y.   194;   24  N.  E.  811. 
Ryan  v.  Fitzgerald,   87  Cal.  345 ;   25  Pac.   546. 
Ranlerson  v.   Rockner,    17   Pla.    809. 

Rawson   v.    Ellsworth,    13   Wash.    667 ;    43    Pac.    934. 
Greenfield  v.  State,  113  Ind.  597  ;  15  N.  E.  241. 
Chapman  v.  White,  52  Mo.  179. 
McNally  v.  Weld,   30   Minn.    209  ;    14   N.  W.    895. 

5.  Josephi   v.   Mady   Clo.    Co.,    13    Mont.    195;    33    Pac.    1. 
Wright  v.   Mulvaney,    78    Wls.    89;    46    N.   W.    1045. 
Mack  v.  Leedle,  78  la.  164;  42  N.  W.  636. 

Baton   v.   Barnhill,    68   Miss.    305;    8    So.    849. 
Headley  v.   Renner,    129   Pa.   St.   542;    18   Atl.   549. 
Roach  v.  Hulings,   16   Pet.   321    (U.  S.). 
Johnson  v.  Visher,  96  Cal.  314;  31  Pac.  106. 
«.     French  v.  Hotchkiss,   60  111.  App.  580. 
Halderman  v.  Birdsall,   14  Ind.   304. 

7.  Clapp  v.  Mass.  Assoc.,  146  Mass.  519 ;  16  N.  E.  433. 
Schwinger  v.  Raymond,   105  N.  T.   648 ;   11   N.  E.   592. 
Couch  v.  Gentry,  113  Mo.  248  ;  20  S.  W.  890. 

Smith  v.  Pearson,  44  Minn.  397  ;  46  N.  W.  849. 

8.  West.  N.  Co.  v.  Va.  Paper  Co.,  87  Va.  418;  12  S.  E.  755. 

9.  Brower  v.   Town  Co.,   84   Ga.   219 ;    10    S.   E.    629. 
Van  Gorder  v.  Sherman,   81  la.   403;   46  N.  W.   1087. 
Schmitz  v.  St.  Louis  Co.,   119  Mo.  256;   24  S.  W.   472. 
Flannagan  v.  Heath,   31  Neb.   776 ;   48   N.   W.   904. 

!•.     Bassett  v.   Monte   Christo,   15   Nev.    293. 
Verdler  v.  Blgn,  16  Oreg.  208;   19  Pec.   64. 
McLennan  v.   Prentice,    85   Wis.   427 ;    55   N.    W.    764. 
Schoonover  v.  Condon,   12  Wash.   475  ;   41  Pac.   196. 
Packer  v.  Roberts,   140  111.  9;   29  N.  E.  668. 
Abernathy  v.  Withers,   99   N.  Car.   520;   6  S.  E.  878. 


CIVIL  PRACTICE.  463 

in  the  trial  court,  the  only  question  that  can  be 
raised  on  appeal  is  whether  the  findings  are  con- 
sistent with  the  judgment11.  A  waiver  of  error  or 
defects  in  findings  occurs  by  failure  of  the  com- 
plaining party  to  except,  whether  the  findings  be 
unsupported  by  the  evidence12,  or  there  be  an  omis- 
sion to  find  as  to  an  issue  made  by  the  pleadings13, 
or  upon  a  particular  question  of  fact14,  or  whether 
the  findings  be  indefinite,  uncertain  and  incom- 
plete15. 

10.  NEW  TRIAL:— Sec.  471.  A  motion  for  a 
new  trial  must  set  out  the  errors  or  irregularities 
constituting  the  grounds  upon  which  a  new  trial  is 
asked.  These  must  be  pointed  out  clearly  and  spe- 
cifically as  the  object  or  office  of  the  motion  is  to  call 
to  the  attention  of  the  trial  court  in  the  first  in- 
stance and  to  the  appellate  court  on  review  the  mat- 
ters relied  on  by  the  movant  as  error  entitling  him 
to  another  trial,  to  the  end  that  the  trial  court  may 

11.  Atch.  Ry.  Co.  v.  Scaggs,   64  Kans.   561 ;    67  Pac.   1103. 
Oallahan  v.  James,  141  Cal.  291 ;   74  Pac.  853. 
Upton  v.  Weisling,   8   Ariz.   298 ;    71   Pac.    917. 

First  Nat  B.  v.  Citiz.  Bank,  11  Wyo.  32  ;  70  Pac.  726  ;  100  A.  S. 

R.    925. 

U.  S.  Mtg.  Co.  v.  Marquam,  41  Oreg.  391 ;  69  Pac.  37. 
Spencer  v.  Com.  Co.,  36  Wash.  374;   78  Pac.  914. 
Sankville   v.   Grafton,    68   Wis.    192;    31    N.    W.    719. 

12.  Wagner  v.   Marht,    32   Wash.    542 ;   73   Pac.   675. 
Brand  v.   Merritt,    15   Colo.   286 ;    25   Pac.    175. 
Waterhouse  v.  Black,   87  la.   317;   54   N.  W.   342. 
Tuomey  v.  Willman,   43   Neb.   28;    61  N.  W.   126. 
Joyner  v.   Stancill,   108   N.   Car.   153;   12   S.   E.   912. 
Winterburn  v.  Chambers,  91  Cal.   170 ;   27  Pac.   658. 
Allen    v.   Hutchinson,    45   Wis.    259. 

Haws  v.  Victoria  Co.,  160  U.  S.  303. 

13.  Merrill    v.    Chapman,    34    Cal.    251. 

Ashmead   v.    Reynolds,    134    Ind.    139;    33    N.    E.    763. 

14.  Sharp  v.   Wright,   35    Barb.   236. 

Heroy  v.   Kerr,    8   Bosw.    194 ;    21   How.   Pr.    409. 
16.     Tackaberry   v.   Bank,    85   Tex.   488 ;    22   S.   W.    151   and   299. 
Cummings  v.  Rogers,  37  Minn.   317;   30  N.  W.   892. 
State  v.  Mining  Co.,  4  Nev.  318. 


464  THE  LAW  OF  WAIVER. 

have  an  opportunity  to  correct  its  erroneous  pro- 
ceedings, or  that  the  appellate  court  may  intelligent- 
ly pass  upon  the  proceedings  of  the  court  below16. 
Any  grounds  that  might  have  been  set  out  but  were 
not  will  be  considered  waived  and  cannot  be  urged 
either  in  the  lower  court  or  on  appeal17. 

Sec.  472.  If  a  party  file  a  proper  motion  for  a 
new  trial  and  set  out  therein  specifically  and  clearly 
all  the  grounds  desired  to  be  relied  upon  as  error 
in  the  trial  of  the  cause,  he  will  yet  be  held  to  have 
waived  not  only  his  motion  but  any  error  of  the 
court  upon  which  his  motion  was  predicated  if  he 
fail  to  except  to  the  ruling  of  the  court  denying  his 
motion.  This  is  necessarily  so  under  the  general 
rule  that  an  objection  and  exception  in  erroneous 
proceedings  are  complements  of  each  other,  in  that 
each  must  be  added  to  the  other  in  order  to  form  a 
complete  record  for  review18.  And  in  the  case  of  a 
motion  for  a  new  trial,  the  motion  itself  is  the  ob- 
jection, and  an  adverse  ruling  thereon  must  be  ex- 
cepted  to  or  the  movant  will  be  held  to  have  been 

16.  Powell  v.   Palmer,    45   Mo.  App.   236. 

Lyons  v.  Van  Gorder,   77  la.  600  ;   42  N.  W.  500. 
Stewart  v.  Scott,  67  Ark.  153;  20  S.  W.  10"''. 
Emery  v.  Real  Est.  Exc.,  88  Ga.  321 ;  14  S.  E.  566. 

17.  Miller  v.  State,  3  Wyo.   657;    29   Pac.   136. 
Hintz  v.  Granpner,  138  111.   159  ;   27  N.  E.  935. 
Barney  v.   Scherling,    40   Miss.    320. 

Gray  v.  Gwinn,  30  Ind.  409. 

Territory  v.  Anderson,  4  N.  M.  213 ;  13  Pac.  21. 

18.  Knop  v.  Ins.  Co.,  101  Mich.  359;   59  N.  W.  653. 
Taylor  v.   Switzer,    110   Mo.    410;    19   S.   W.    735. 
U.  S.  v.  De  Amador,  6  N.  Mex.  173;   27  Pac.  488. 
Cogshall  v.  Spurry,  47  Kans.  448;  28  Pac.  154. 

Vaughn  Lbr.  Co.  v.  Mo.  etc.  Co.,  3  Okla.  174;   41  Pac.   81. 

State  v.  Rollins,  31  W.  Va.  363. 

Augusta   Ry.   v.   Andrews,    89    Ga.    653 ;    16   S.   E.   203. 

Moss   v.    Smith,    19   Ark.    683. 

Dan  forth  v.  Lindell  etc.  Co.,  123  Mo.  196;  27  S.  W.  715. 


CIVIL  PRACTICE.  465 

satisfied  with  the  ruling  and  to  have  acquiesced 
therein19. 

11.  WAIVER  IN  APPELLATE  PEACTICE : 
— Sec.  473.  In  the  previous  sections  of  this  chapter 
we  have  considered  the  matters  which  will  not  re- 
ceive attention  from  an  appellate  court  unless 
proper  foundation  is  laid  in  the  trial  court  by  way 
of  pleadings  or  proper  and  timely  objections  and 
exceptions  to  evidence  or  other  matters  of  practice. 
It  only  remains  to  mention  a  few  matters  of  prac- 
tice pertaining  strictly  to  the  appellate  court. 

Sec.  474.  Thus,  it  is  necessary  in  order  for  a 
party  to  obtain  a  review  of  any  alleged  erroneous 
procedure  that  he  should  present  to  the  court  an  as- 
signment of  error  specifying  the  grounds  relied 
upon  for  a  reversal.  And  unless  the  assignment 
is  made,  the  appellee  has  the  right  to  have  the 
appeal  dismissed.  But  to  do  this,  he  must  move 
for  the  dismissal  at  the  proper  time ;  for  it  is  said 
that  the  objection  that  no  assignment  of  errors  has 
been  made  and  filed  on  appeal,  not  raised  until 
after  argument  in  the  appellate  court,  comes  too 
late  and  must  be  held  waived20.  But  the  assign- 
ment of  error  must  be  made  in  accordance  with  the 
rules  of  court,  and  if  not  so  made,  will  not  be 
noticed  by  the  court21.  And  even  where  the  assign- 
ments are  properly  made  the  party  assigning 
them  must  urge  them  in  the  appellate  court,  for  by 

19.  Mausur  v.  Churchman,   84   Ind.   578. 
Fletcher  v.   Waring,    137    111.    159. 
Grady  v.  Jeftares,   25  Fla.   743;   6  So.   828. 
Roach  v.  Blakey,  89  Va.   767;  17  S.  E.   228. 
State  v.  Boyce,  39  La.  Ann.  229;   1  So.  450. 

20.  Smith  v.  Hill,  83  la.  684;   49  N.  W.  1043;  32  A.  S.  R.  829. 
Andrews  v.   Burdick,    62   la.   714 ;    16   N.   W.    275. 

21.  Martin  v.   Jackson,    27   Pa.    St.    504;    67   A.   D.    489. 


466  THE  LAW  OF  WAIVEB. 

failing  to  insist  upon  an  assignment  in  argument 
before  the  court,  he  must  be  held  to  have  waived 
it22.  And  an  assignment  properly  made  but  not 
mentioned  in  appellant's  brief  will  be  held 
waived23.  The  assignment  must  contain  all  the 
errors  relied  on  by  appellant  for  reversal,  for  the 
appellate  court  will  not  notice  errors  not  assigned. 
Sec.  475.  Practically  the  whole  effect  of  a 
waiver  in  matters  of  practice  is  to  preclude  a 
party  from  taking  a  different  position  in  the  su- 
perior court  from  that  taken  by  him  in  the  court 
below,  or  from  taking  advantage  of  some  right  on 
appeal  that  he  had,  by  his  conduct  in  the  trial 
court,  induced  the  court  or  the  opposing  party  to 
believe  would  not  be  asserted  by  him.  But  there 
are  matters  to  be  noticed  which  constitute  a  bar 
to  a  party's  right  to  appeal  at  all. 

A.    WAIVER  OF  EIGHT  TO  APPEAL— 

(1)  FEOM  CONSENT  JUDGMENTS :— Sec. 
476.  Parties  to  a  civil  action  have  the  right  to 
consent  or  agree  to  any  kind  of  judgment  they  de- 
sire, provided  no  question  of  public  policy  is  in- 
volved or  the  rights  of  third  parties  are  not  af- 
fected. And  where  such  a  judgment  is  entered,  no 
question  of  fraud  arising,  any  errors  in  the  action 
theretofore  existing  are  cured  and  the  judgment 
ends  all  contention  between  the  parties.  After 
such  consent,  nothing  remains  for  the  court  to  do 
but  to  enter  the  judgment  the  parties  have  agreed 
upon,  and  the  parties  themselves  are  thereby  pre- 
22.  Arnold  v.  Arnold,  124  Ala.  650;  27  So.  465;  82  A.  S.  R.  199. 

Ward  v.  Hood,  124  Ala.  570;   27  So.   245;   82  A.   S.  R.  205. 
23.     Johnson  v.  Schlosser,  146  Ind.  509  ;  45  N.  E.  702  ;  36  L.  R.  A.  59. 

Ferguson  v.  Wilson,  122  Mich.   97;   80  N.  W.   100G ;   80  A.  S.  R 
543. 

Black  v.  Dawson,   82  Mich.   485  ;   46  N.  W.   793. 


CIVIL  PEACTICE.  467 

eluded24.  And  from  such  judgment  there  is  no  ap- 
peal. The  parties  have  by  their  consent  waived 
any  error  and  right  to  appeal25.  And  the  same  is 
true  where  the  parties  have  stipulated  that  the  judg- 
ment shall  be  final26.  The  reason  is  that  in  the  ap- 
pellate court,  as  well  as  in  the  trial  court,  there  must 
be  some  real  issue  or  controversy,  for  where  there 
is  no  controversy,  there  can  be  no  appeal27.  And 
where  the  controversy  has  been  ended  by  any  acts 
of  the  parties  themselves,  the  right  to  appeal  is 
waived28,  as  where  the  cause  of  action  has  been  set- 
tled29. And  where  a  party  has  the  right  to  either 
prosecute  a  suit  to  review  a  judgment  or  to  appeal 
therefrom,  he  waives  the  right  to  appeal  by  prose- 
cuting his  suit  to  review30. 

(2)  BY  PAYING  JUDGMENT :— Sec.  477. 
There  are  cases  holding  that  payment  of  judgment 
extinguishes  it  and  that  there  is  then  nothing  to 
appeal  from.  Consequently  the  holding  of  these 

24.  Rader  v.  Barr,  22  Oreg.  496;  29  Pac.  889. 

Schmidt    v.    Mining    Co.,  28    Oreg.  9 ;  40    Pac.  406    and    1016 ;  62 

A.   S.  R.   759. 

Duncan  v.  Hartwell,  9  Tex.  495  ;   60  A.  D.  176. 
Stephens  v.  Bicknell,  27  111.  444;   81  A.  D.  242. 

25.  Schmidt  v.  Mining    Co.,  28    Oreg.  9 ;  40    Pac.  406    and    1016 ;  52 

A.   S.   R.   759. 

Beach;  Modern  Eq.  Pr.  Sec.  795. 
Armstrong  v.  Cooper,  11  111.  540. 

26.  Townsend  v.  Stone  Co.,  15  N.  Y.  587. 

27.  Little  v.  Bowers,  134  U.  S.  547. 

Nunan  v.  Valentine,  83  Cal.  588  ;  23  Pac.  713. 

Treat  v.  Hiles,  77  Wis.  475;  44  N.  W.  1088. 

State  v.  Westmoreland,  29  S.  Car.  1 ;  6  S.  E.  847. 

Hintrager  v.  Mahoney,  78  la.  537  ;   43  N.  W.   522  ;  6  L.  R.  A.  50. 

28.  State  v.  Kans.  City,  etc.,  97  Mo.  331;  10  S.  W.  855. 
County  v.  So.  Pac.  Ry.,  116  U.  S.  138. 

29.  Monnett  v.  Hemphill,  110  Ind.  299  ;  11  N.  E.  230. 
Wood,  etc.  v.  Heft,  8  Wall.   333. 

Cartwright  v.  Howe,  1  How.  188   (U.  S.). 

30.  Masonic  Co.  v.  Commonwealth,  87  Ky.  349  ;  12  S.  W.  145. 
New  Orleans  Co.  v.  Crescent  Co.,  33  La.  Ann.  934. 
Harvey  v.  Fink,  111  Ind.  249  ;  12  N.  E.  396. 


468  THE  LAW  OF  WAIVER. 

courts  is  that  a  voluntary  payment  of  a  judgment  is 
a  waiver  of  the  right  to  appeal  from  it,  and  that  an 
appeal  taken  or  pending  at  the  time  of  payment 
is  void  and  may  be  dismissed  on  motion31.  But 
these  cases  are  not  in  line  with  the  weight  of 
authority  which  is  to  the  effect  that  a  judgment 
defendant  does  not  waive  his  right  to  appeal  by 
paying  the  judgment  either  before  or  after  taking 
his  appeal.  It  being  immaterial  whether  such  pay- 
ment is  voluntary  or  after  execution  has  been  is- 
sued and  served  upon  him32.  A  contrary  rule 
would  often  result  in  injury  to  a  judgment  defend- 
ant, while  the  rule  stated  can  produce  injury  to 
neither  party. 

Sec.  478.  Payment  by  a  judgment  defendant 
is  often  necessary  in  order  to  save  his  property 
from  sacrifice,  and  what  he  does  to  save  his  prop- 
erty under  a  judgment  should  in  no  manner  pre- 
clude him  from  attacking  the  judgment.  As  has 
been  said:  "Suppose  a  judgment  has  been  ren- 
dered against  a  party  and  he  cannot  give  security 
to  supersede  its  enforcement  while  he  prosecutes 
his  appeal,  and  an  execution  is  therefore  issued, 
and  his  property  is  about  to  be  sold  under  it — his 
homestead,  it  may  be.  Now  can  it  be  claimed  that 
if  he  shall  pay  off  the  judgment  he  is  thereby  de- 
prived of  an  appeal?  Surely  this  cannot  be  the 
law"33.  And  this  is  the  principle  upon  which  the 

31.  State  v.  Conkling,  54  Kans.  108;  37  Pac.  992;  45  A.  S.  R.  270. 
Sager  v.  Moy,  15  R.  I.  528  ;  9  Atl.  847. 

Morton  v.  Superior  Court,  65  Cal.  496;  4  Pac.  489. 

32.  Grim  v.  Semple,  39  la.  570. 

Mayor,  etc.  v.  Riker,  38  N.  J.  L.  225;  20  A.  R.  386. 

Richeson  v.  Ryan,  14  111.  74  ;  56  A.  D.  493. 

2  Freeman,  Judgments,   Sec.   480a. 

Belton  v.  Smith,  45  Ind.  291. 

Hayes  v.  Nourse,  107  N.  Y.  577;  14  N.  E.  508;  1  A.  S.  R.  891. 

33.  Grim  v.  Semple,  39  la.  570. 


CIVIL  PRACTICE.  469 

doctrine  is  usually  announced34.  Thus,  a  party 
does  not  lose  his  right  to  appeal  by  complying  with 
a  decree  in  equity35,  executing  a  conveyance  in  ac- 
cordance with  a  decree36,  or  by  otherwise  doing 
what  the  judgment  or  decree  required. 

(3)  BY  ACCEPTING  BENEFITS  OF 
JUDGMENT :— Sec.  479.  A  different  rule  obtains 
where  an  attempt  to  appeal  is  made  by  a  judgment 
plaintiff.  In  such  case,  the  rule  is  that  a  party 
who  accepts  the  benefits  of  a  judgment  waives  his 
right  to  appeal  from  it37.  The  reason  is  that  when 
a  judgment  is  satisfied  it  has  passed  beyond  re- 
view; for  the  satisfaction  thereof  is  the  last  act 
and  end  of  the  proceeding.  Payment  produces  a 
permanent  and  irrevocable  discharge;  after  which 
the  judgment  cannot  be  restored  by  any  subsequent 
agreement  nor  kept  on  foot  to  cover  new  and  dis- 
tinct engagements38. 

Sec.  480.  But  the  rule  is  not  without  qualifi- 
cation and  exceptions.  Thus,  it  is  said  that  the 
right  to  take  an  appeal  is  not  waived  by  accepting 


34.  Factors  Co.  v-  New  Harbor  Co.,  37  La.  Ann.  233. 
Bruce  v.  Smith,  44  Ind.  1. 

Edwards  v.  Perkens,   7  Oreg.   149. 

Kelly  v.   Bloom,   17  Abb.   Pr.   229. 

Burrows  v.  Micklin,  22  Fla.  677. 

Chapman  v.  Button,   68  Wis.  657 ;  32  N.  W.  683. 

35.  Peer  v.  Cookerow,  14  N.  J.  Eq.  361. 
County  Com.  v.  Johnson,  21  Fla.  577. 

36.  O'Hara  v.  MacConnell,  93  TJ.  S.  150. 

37.  Ullery  v.  Clark,  18  Pa.  St.  148. 

McCracken  v.  Cabell,  120  Ind.  266;   22  N.  E.  136. 
Smith  v.  Coleman,  77  Wis.  343;  46  N.  W.  664. 
Stinson  v.  O'Neal,  32  La.  Ann.  947. 
Paine  v.  Wooley,  80  Ky.  568. 

38.  Freeman  on  Judgments,  Sec.  466. 

Cassell  v.  Fagin,  11  Mo.  208 ;  47  A.  D.  151. 
Portland  Co.  v.  O'Neil,  24  Oreg.  54 ;  32  Pac.  764. 
Bolen  v.  Cumby,  53  Ark.  514;  14  S.  W.  926. 
Alexander  v.  Alexander,  104  N.  Y.  643  ;  10  N.  E.  37. 


470  THE  LAW  OF  WAIVER. 

payment  of  a  judgment  where  the  error  in  it  re- 
spects the  computation  of  interest  and  was  not 
known  to  the  plaintiff  when  he  accepted  pay- 
ment89. And  it  is  stated  that  it  is  the  possibility 
that  the  appeal  by  a  plaintiff  from  a  judgment  of 
which  he  has  received  the  benefits  may  lead  to  a 
result  showing  that  he  was  not  entitled  to  what  he 
has  received  under  the  judgment  appealed  from 
that  defeats  his  right  to  appeal;  consequently, 
where  there  is  no  such  possibility,  his  right  to  ap- 
peal is  unaffected  by  acceptance  of  benefits  under 
the  judgment  appealed  from40.  And  if  it  is  possi- 
ble for  him  to  obtain  a  more  favorable  judgment 
in  the  appellate  court  without  the  risk  of  a  less 
favorable  one  from  a  new  trial  of  the  whole  case 
there  or  in  the  lower  court,  then  the  acceptance  of 
what  the  judgment  gives  him  is  not  inconsistent 
with  an  appeal  for  the  sole  purpose  of  securing, 
without  a  re-trial  of  the  whole  case,  a  decision  more 
favorable  to  himself41. 

Sec.  481.  The  rule  holding  a  judgment  plain- 
tiff to  have  waived  his  right  to  appeal  by  accept- 
ing benefits  under  the  judgment  is  equally  applica- 
ble to  cases  where  he  sues  out  execution  to  enforce 
the  judgment,  for  he  thereby  elects  to  take  it  as  it 

39.  Jackson  v.  City,  182  Mass.  26;  64  N.  E.  418;  94  A.  S.  R.  635. 

40.  Tyler  v.   Shea,  4  N.  Dak.  377;   61  N.  W.   468;  60  A.  S.  R.   660. 

citing : 

Reynes  v.  Dumont,  130  U.  S.  354. 
Mellen  v.  Mellen,  137  N.  Y.  606 ;  33  N.  E.  545. 
Morrlss  v.  Garland,  78  Va.  215. 
Upton  Mfg.  Co.  v.  Hulske,  69  la.  557  ;  29  N.  W.  621. 

41.  Id.     And  see: 

Monnett  v.  Merz,  131  N.  Y.  646 ;  30  N.  E.  866. 
Tarleton  v.  Goldthwaite,  23  Ala.  346 ;  58  A.  D.  296. 
Meaders  v.  Gray,  60  Miss.  400 ;  45  A.  R.  414. 
Clift  v.  Wade,  51  Tex.  15. 


CIVIL  PRACTICE.  471 

was  rendered42.  And  a  party  cannot  avail  himself 
of  the  fruits  of  that  part  of  a  judgment  favorable 
to  him,  and  then  by  appeal  seek  to  reverse  such 
portions  as  militate  against  him43. 

The  rules  applicable  to  a  judgment  plaintiff 
attempting  to  appeal  from  a  judgment  of  which  he 
has  accepted  the  benefits  obtain  with  equal  force 
where  judgment  was  in  favor  of  the  defendant  and 
he  attempts  to  appeal  therefrom.  In  such  case  he 
is  held  to  have  waived  his  right  to  appeal  by  en- 
forcing the  provisions  of  the  judgment44. 

B.  NOTICE  OF  APPEAL:— Sec.  482.  One 
entitled  to  notice  of  appeal  may  waive  such  notice 
and  submit  the  cause  without  it,  or  he  may  waive 
defects  or  irregularities  in  same.  Where  the  ap- 
pellate court  has  jurisdiction  of  the  subject-mat- 
ter, a  voluntary  appearance  by  the  respondent,  and 
taking  steps  in  the  appellate  court  constitute  a 
waiver  of  mere  irregularities  in  the  service  of  no- 
tice of  appeal45,  and  such  irregularities  are  waived 
by  a  submission  without  objection46.  But  a  sub- 
mission will  not  be  a  waiver  where  no  notice  at  all 
was  given47;  although  it  is  said  that  an  implied 
waiver  of  notice  will  be  held  where  there  is  an  ap- 

42.  Hall  v.  Lacy,  37  Pa.  St  366. 
Knapp  v.  Brown,  45  N..  T.  207. 

43.  Holt  v.  Rees,  46  111.  181. 

Webster,  etc.  Co.  v.  St.  Crolx  Co.,  71  Wls.  317 ;  36  N.  W.  864. 

44.  Bennett  v.  Van  Syckel,  13  N.  T.  481. 

45.  Holden  v.  Haserodt,  2  S.  Dak.  220 ;  49  N.  W.  97. 
Cleveland  Ry.  v.  Mara,  26  Oh.  St.  185. 
Hohmann  v.  Eiterman,  83   111.  92. 

46.  Benson  v.  Carrier,  28  S.  Car.  119  ;  5  S.  E.  272. 
Guarantee  Co.  v.  Buddin&ton,  23  Fla.  514 ;  2  So.  885. 
Richardson  v.  Green,  130  U.  S.  104. 

Chicago  Co.  v.  Abilene  Co.,  42  Kans.  104;  21  Pac.  1112. 
Cain  v.  Goda,  94  Ind.  555. 

47.  Burkam  v.  McElfresh,  88  Ind.  223. 


472  THE  LAW  OF  WAIVER. 

pearance  and  a  brief  upon  the  merits  filed  by  the 
respondent48. 

48.     Bates  v.  Scott,  26  Mo.  App.  428. 

Robertson  v.  O'Riley,  14  Colo.  441;  24  Pac.  660. 
Wilson  v.  Zeigler,  44  Tex.  657. 
Schmidt  v.  Wright,  88  Ind.  56. 


INDEX 

[References  are  to  sections.] 

ABANDONMENT: 

Of  Contract,  entitled  to  compensation,  17. 

If  willful,  17;  27. 

Of  Right,  without  knowledge  of  the  facts,  70. 
Waiver  is  voluntary,  of  right,  1. 
Of  one  remedy  to  follow  another,  65. 
Of  Contract,  in  rescission,  66. 

Of  Execution,  now  waiver  of  chattel  mortgage,  116. 
Of  Mortgage,  by  execution,  123. 
Of  Mortgage,  hy  taking  other  security,  126. 

by  attachment,  127. 

by  delay  in  enforcing,  128. 
Agreement  for,  of  entry  to  foreclose,  139. 
Collateral  security  is,  of  mechanic's  lien,  166. 
Of  business,  waives  exemptions,  185. 

ABSCONDING: 

Of  Maker  of  note,  78. 

ACCEPTANCE: 

Of  Part  Performance  of  contract,  12. 
Waiver  right  to  object  to  performance,  12. 
Must  be  with  knowledge  of  facts,  12. 
Knowledge  imputed  from  circumstances,  12. 
Is  waiver  of  defects,  12,  19,  21. 
Not  a  waiver  if  involuntary,  13,  14,  45. 

or  of  latent  defects,  14. 

Of  personal  property  after  inspection,  a  waiver,  15. 
Damages  not  waived  by,  15,  21. 
Renders  liability  fixed,  17. 
Under  severable  contract,  liable  20. 
Of  part  payment  as  waiver  of  time,  40,  41,  45. 

waives  right  to  rescind,  40. 
Failure  of,  of  offer  of  arbitration,  42. 
Of  tender,  refusal  on  one  ground,  waiver  of  others,  47. 
Refusal  of,  tender  not  necessary,  47. 
Tender  waived  by,  50. 

Uncommunicated  intention  not  to  accept  tender,  51. 
Of  rent,  by  landlord,  waives  forfeiture,  53. 
Of  benefit,  waiver  of  breach  of  condition  for  support,  55. 
Of  payment,  waives  forfeiture,  56. 
Of  rent,  waives  default  of  tenant,  62. 

no  waiver  of  future  default,  63. 
Of  rent  from  sub-lessee,  64. 
Of  part  of  interest,  by  mortgagee,  132,  133,  134. 
Of  surplus  from  foreclosure  sale,  146. 
Whether,  of  note  waives  mechanic's  lien,  158,  159,  162. 

note  of  a  third  person,  160,  162. 

of  draft  as  waiver,  163. 

of  mortgage  as  waiver,  164. 
Of  payment  of  mortgage  by  conveyance,  waiver  redemption, 

207. 


(473) 


474  INDEX. 

[References  are  to  sections.] 

ACTION: 

Right  of,  barred,  220. 

ACQUIESCENCE: 

By  landlord,  in  delay  in  paying  rent,  62. 

Rescission  waived  by,  70. 
Waives  right  to  redeem,  211,212. 
Forfeiture  of  corporate  shares  waived  by,  248. 

ACKNOWLEDGMENT : 

Of  debt,  as  waiver  of  statute  of  limitations,  219. 
requisites  of  220,  221. 
part  payment  as,  224. 
must  be  voluntary,  224. 
payment  of  interest  as,  224. 

ADDITIONAL  INSURANCE: 

Waiver  of  condition  against,  273. 

Oral  waiver  of  condition  by  agent,  299,  301,  302. 

Waived  by  treating  policy  as  in  force,  299. 

Consent  to,  endorsed  on  policy,  300. 

No  objection  by  insurer,  301,  302. 

Silence  of  insurer,  301,  302,  303. 

Oral  waiver,  302. 

Failing  to  endorse  consent  on  policy,  303. 

to  cancel  policy,  303. 
Collecting  premiums,  303. 
Failing  to  notify  insured  of  forfeiture,  303. 

ADMISSION: 

(See:     Evidence;  Practice.) 

AGENT;  AGENTS: 

Waiver  may  be  by,  5. 

except  of  personal  right,  6. 
Must  have  authority,  5. 
Mechanic's  liens  waived  by,  171. 
Insurers  must  act  by,  262. 

circumscribing  powers  of,  262,  263. 

general  rules  of  agency  applicable,  263. 

may  waive  conditions,  265. 

general  and  special,  266,  270. 

powers  of,  266. 

knowledge  of,  is  knowledge  of  insurer,  266. 

as  agent  of  insured,  266,  267,  268. 

acts  of,  questioned  by  insurer,  266. 

held  out  as  such  by  insurer,  267. 

who  are,  269. 

what  constitutes,  269. 

restrictions  on  authority  of,  269,  270. 

officers  as,  270. 

knowledge  of  insured  of  limitations  on  authority  of,  271. 

whether  clerks  are,  272,  273. 

sub-agents,  powers  of,  272. 

countersigning  policies,  272. 

ratifying  act  of  sub-agent,  272. 


INDEX.  475 

[References  are  to  sections.] 

waiving  acts  prohibited  by  charter,  274,  275. 

knowledge  of,  as  to  title,  279. 

is  knowledge  of  insurer,  281. 

failing  to  mention  encumbrances,  as  waiver  of  condition, 

282. 

knowledge  of  encumbrances,  282. 
of  prior  insurance,  287. 
of  "iron-safe"  provision,  289,  290. 
of  change  of  title,  291,  292. 
of  subsequent  encumbrances,  295,  296. 
whether  may  waive  mis-use  of  premises  after  delivery  of 

policy,  297,  298. 

additional  insurance,  299,  301. 
waived  orally  by,  301,  302. 
collection  of  premiums  by,  304. 
waiving  prepayment  of,  304. 
by  delivery  of  policy  without  collecting,  305. 
by  giving  credit,  305,  306. 
by  custom,  306. 
by  extending  time,  308. 
by  conduct,  308. 

by  accepting  past-due  payment,  308,  309. 
authority  of,  to  waive  time  of  payment  of  premiums, 

310,  311. 

to  waive  cash  payment,  314. 
to  endorse  waiver  on  policy,  317,  318. 
to  waive  notice  of  loss,  321,  324. 
to  waive  proofs  of  loss,  325,  335,  336. 
to  waive  proofs  orally,  337,  338. 

AGREEMENT;  AGREEMENTS: 

Concurrent,  to  waive  exemptions,  183. 

is  against  public  policy,  183. 

by  head  of  family,  183,  184. 

by  single  man,  184. 

to  turn  over  exempt  property,  186. 
In  mortgage,  to  waive  redemption,  200. 
Parol,  to  waive  redemption,  209,  213. 
To  waive  statute  of  limitations,  216. 

ANSWER;  ANSWERS: 

To  merits,  waives  process,  353. 
Is  appearance,  354. 

To  contest  merits,  sufficient  as  appearance,  356. 
Waives  service  of  process,  358. 
After  objection  to  process,  no  waiver,  358. 
After  overruling  of  demurrer,  373. 
held  waiver  of  defects,  373. 

contra,  374. 

No  waiver  of  mis-joinder  of  parties,  375, 
As  waiver  of  objections  to  venue,  380,  381. 


476  INDEX. 

[References  are  to  sections.] 

APPEAL: 

Statute  of  frauds  first  raised  on,  181. 
Defects  in  complaint  not  first  raised  on,  370. 
Mis-joinder  of  parties,  first  raised  on,  375. 
Objections  necessary  for,  of  any  matter,  426,  427. 
Special  objection  not  permitted  on,  432. 

exceptions  to  rule,  438. 

Questions  raised  on,  without  objection,  438. 
Exceptions  essential  to,  441. 

must  specify  ruling,  441,  442. 

to  each  ruling,  443. 

to  exclusion  of  evidence,  443. 

must  be  specific,  443. 

when  taken,   443. 

to  admission  of  evidence,  444. 

to   ruling  on  non-suit,   451. 
Instructions  on,  error  in  must  be  objected  to,  457. 

oral,  objection  to  459. 

given,  must  be  excepted  to,  460. 

exception  must  point  out  defect,  461. 

general  exception  insufficient,  462. 

omitted,  must  be  requested,  463. 
otherwise  waived,  463. 

exceptions  presumed  on  appeal,  468. 

taken  after  verdict,  468. 
Verdict,  objection  to,  on,  469. 
Practice  on,  473,  et  seq. 

assignment  of  errors  to  be  filed,  474. 
without,  appeal  dismissed,  474. 

filing  of  assignment  waived,  474. 

assignment  not  urged,  waived,  474. 

not  mentioned  in  brief,  474. 
must    contain    all    errors,    474. 
Effect  of  waiver  on,  475. 
Waiver  of  right  to  appeal,  476. 

from  consent  judgment,  476. 
After  payment  of  judgment,  477. 

contra,  477. 

After  complying  with  decree,  478. 
After  accepting  benefits  of  judgment,  479,  481. 

contra,  480. 

After  issuing  execution,  481. 
Notice  of,  waiver  of,  482. 

defects  in  waived,  482. 

appearance  waives,  482. 

filing  brief  waives,  482. 

APPEARANCE: 

Attorney  not  to  enter,  without  authority,  6. 

Guardian  cannot  enter  for  infant,  10. 

General,  waives  process,  352. 

Waives  defects  in  process,  353. 

Waives  defects  in  service  of  process,  352,  S63. 

Special,  not  a  waiver,  353. 

Piling  answer  or  demurrer  is,  354. 

Must  be  real,  356. 


INDEX.  477 


[References  are  to  sections.] 

For  contesting  merits,  sufficient,  356. 

Illustrations  of,  357. 

After  judgment,  359. 

Waives  mis-nomer,  360. 

By  attorney,  361,  365. 

Special,  no  waiver  of  process  or  defects,  362,  363. 

what  is,  363,  364. 
Under  protest,  364. 

Cannot  confer  jurisdiction  over  subject-matter,  367. 
By  accused,  gives  jurisdiction  over,  386. 

APPLICATION:      (See:     Insurance) 
For  Insurance,  provisions  in,  266. 

making  agent  representative  of  insured,  266,  267. 
statements  in  unknown  to  applicant,  267. 

as  to  title,  279,  280,  281. 
oral,  without  disclosing  encumbrances,  282. 
failure  to  disclose  prior  insurance,  287. 

ARBITRATION: 

Waived  by  failure  to  accept  offer  of,  42. 
Agreement  for,  waiving  mechanic's  liens,  170. 
As  condition  of  recovery  by  insured,  339. 
May  be  waived  by  conduct,  339. 

by  refusal  to  pay,  340. 

by  denial  of  liability,  340. 

by  refusing  request  for,  340. 
Cannot  divest  courts  of  jurisdiction,  369. 

ARREARS: 

Payments  in,  acceptance  of,  40. 

Rent  in,  payment  of,  54. 

Interest  in,  payment  by  indorser  waives  demand,  9(5. 

Right  to  foreclose,  waived  by  payments  of,  132. 

ASSESSMENTS: 

Not  levied  till  conditions  performed,  227. 
Payment  of,  waiver  of  conditions,  230,  232. 
What  are,  245. 
Irregularities  in,  effect  of,  245. 

waived,  how  245. 

waiver  by  ratification,  245. 

participating  in  levying,  245. 
Forfeiture  of  shares  for  non-payment  of,  246. 

waiver  of  by  delay,  246. 

enforcing,  waives  right  to  sue,  247. 

irregularity  in,  waived,  248. 
by  acquiescence,  248. 

ASSIGNMENT: 

Taking,  by  endorser  waives  demand  and  protest,  97,  99,  lOi 
To  endorser,  between  endorsement  and  maturity,  101. 
After  maturity,  102. 


478  INDEX. 

[References  are  to  sections.] 

ASSIGNEE: 

Of  mortgage,  right  to  waive  entry,  140. 
Of  corporate  shares,  249. 
Recognizing,   by   corporation,    256. 

ASSIGNMENT  OF  ERRORS: 
(See:    APPEAL) 

ATTACHMENT: 

Waives  right  to  rescind,  68. 

Of  goods,  waives  fraud  in  sale  of,  68. 

An  affirmance  of  voidable  contract,  68. 

Lien  of  chattel  mortgage  waived  by,  112. 

Equity  of  redemption  not  subject  to,  112. 

Of  property  in  custody  of  law,  114. 

Mortgage  held  not  waived  by,  115. 

Of  proceeds  of  sale  of  mortgaged  property,  117. 

On  real  estate,  waiver  of  mortgage,  127. 

Of  goods,  waives  carrier's  lien,  151. 

Whether  waiver  of  mechanic's  lien,  169. 

of  vendor's  lien,  174. 
Of  exempt  property,  185. 
Traversing,  where  property  exempt,  186. 
Defects  in  affidavit,  382. 

fatal,  if  taken  advantage  of,  382. 

traversing,  waiver  of  382. 
Want  of  affidavit  never  waived,  382. 
Defects  in  writ,  383. 

must  be  set  up  by  defendant,  383. 

appearance  without  objecting,  a  waiver,  383. 

waived  by  executing  re-delivery  bond,  383. 
contra,  383. 

other  acts  amounting  to  waiver  of,  383. 
Lien  of,  between  plaintiff  and  defendant,  384. 

irregularities  in,  385. 

instances  of  waiver  of,  385. 

ATTORNEY;  ATTORNEYS: 

May  waive  client's  rights  if  authorized,  6. 

Has  full  authority  as  to  matters  of  practice,  8. 

Governed  by  rules  of  agency,  6. 

Merely  representative  in  court,  6. 

Cannot  enter  appearance,  6. 

Cannot  waive  process  for  infants,  11. 

Lien  of  against  judgment,  for  fees,  155. 

waived  by  taking  other  security,  155. 

not  by  delay  in  enforcing,  155. 

nor  by  taking  note,  155. 

conduct  amounting  to  waiver  of,  156. 
And  client,  communications  between,  191. 

by  partner,  191. 

waived  by  conduct,  191,  192. 

by  signing  will,  192. 

by  signing  mortgage,  192. 

waiver  of  may  be  oral,  193. 

elient  becoming  witness,  waives  privilege,  195. 


INDEX.  479 


[References  are  to  sections.] 

May  waive  privilege  of  patient,  between  physician  &  patient, 

196. 

Appearance  by,  sufficient  to  waive  process,  361,  365. 
Cannot  waive  right  of  accused  to  be  present  at  trial,  406. 

BILLS  &  NOTES: 

Waiver  of  presentment,  protest  and  notice,  74. 
Indorsement  implies  knowledge  of  contents  of  instrument,  74. 
Waiver  of  presentment,  etc.  in  endorsement,  75. 

after  indorsement  of  instrument,  78. 
Waiver  of  presentment  by  asking  time,  78,  84,  87. 

at  maturity  of  instrument,  79. 

by  admitting  liability,  79,  80. 
New  promise  by  endorser  to  pay,  81,  89. 
Failure  of  presentment,  etc.  no  defense  when  waived,  82. 
Offer  to  pay  part,  unaccepted,  85. 

Knowledge  of  lack  of  presentment,  presumed,  90,  91. 
Paying  interest  waives  demand  and  protest,  96. 
Indorser  of,  taking  security,  97  to  102. 
Consideration  for  waivers  in,  104,  et  seq. 
Waivers  in,  statute  of  frauds  affecting,  109. 
Mortgage  secures,  118. 
Mechanic's  liens,  waiver  of  by  taking,  158. 
Whether  are  collateral  security,  167. 
As  waiver  of  vendor's  lien,  172,  173. 
Waiver  of  exemptions  in,  184. 

BREACH: 

Of  Contract,  willful,  no  recovery,  19. 

recovery  though  willful,  17. 
Waived  by  proceeding  under  contract,  22,  56. 
As  to  time,  waived  by  directing  'changes,  44. 
Of  condition  for  future  support,  55. 
Of  condition  subsequent,  waiver  of,  58. 
Once  waived,  not  revived,  58. 
Of  conditions  in  mortgages,  131,  132. 

for  payment  of  interest,  132. 

Of  condition,  waived  by  delivery  of  policy  of  insurance,  277. 
by  silence  of  insurer,  278. 

as  to  title,  waived  by  delivery  of  policy,  279,  281,  291. 
against  encumbrances,  waiver  by  insurer,  282. 
by  failure  to  make  inquiry,  282. 
by  agent's  failing  to  mention,  282. 
by  delivering  policy,  282. 
by  receipt  of  premiums,  282,  284. 
against  vacancy,  waiver  of,  285. 

BUILDINGS: 

Acceptance,  if  involuntary,  no  waiver  of  defects  in,  14,  15,  45. 

nor  if  defects  not  discoverable,  23. 
Time,  in  contracts  for,  waiver  of,  43. 

BURDEN  OF  PROOF: 

Presumption  shifts,  81. 

To  show  laches  of  holder,  on  endorser,  91. 

contra,  93. 
Of  showing  waiver  of  vendor's  lien,  on  vendee,  174. 


480  INDEX. 

[References  are  to  sections.] 

BY-LAWS: 

What  are,  239. 

Whether  acts  contrary  to,  void,  239. 

Waiver  of,  239. 

by  officers,  239. 

by  insurer  issuing  policy,  239. 
Of  insurer,  waiver  of,  276. 

CARRIERS: 

Have  no  property  rights  in  goods  carried,  149. 
Lien  of,  depends  on  possession,  148. 
lost  by  surrender  of  possession,  150. 

must  be  voluntary,  150. 
waived  by  conduct,  150. 

not  lost  by  surrender  of  possession  if  conditional,  150. 
waived  by  attaching  goods,  151. 
by  levying  execution,  151. 
by  giving  credit,  152. 
by  taking  security,  152. 

CHARTER: 

Right  of  state  to  cancel,  258,  et  seq. 
belongs  exclusively  to  state,  258. 
upon   breach   of   condition,   258. 

waived  by  permitting  corporation  to  continue,  258. 
waiver  of,  question  of  intention,  258. 
illustrations   of,    259,    260. 
cases  where  right  not  waived,  261. 
Of  insurance  company,  274,  et  seq., 
waiver  of  acts  prohibited  by,  274. 
acting  contrary  to,  fraud,  275. 

CHATTEL  MORTGAGES: 

Lien  of,  waived  by  attachment,  112,  114. 

inconsistent  with  attachment,  112. 
Legal  title  under,  112. 

By  attachment  of  property  In  custody  of  law,  114. 
Lien  held  not  lost  by  attachment,  115. 
Lien  of,  waived  by  levying  execution,  116. 

not  where  execution  abandoned,  116. 
Attachment  of  proceeds  of  sale  of  property,  117. 
Waiver  of  lien  by  attempted  sale,  117. 
As  waiver  of  mechanic's  lien,  167. 

CLERKS: 

Of  insurance  agents,  as  agents  of  insurer,  272,  et 
whether  represent  insurer,  272. 
without  knowledge  of  insurer,  272. 

CLIENT: 

Communication  between,  and  attorney,  191. 
waiver  of  by  administrator,  191. 
may  be  waived  orally,  193. 
becoming  witness  as  waiver  of,  195. 


INDEX.  481 

[References  are  to  sections.] 

COLLATERAL.  SECURITY: 

Offer  to  give,  no  waiver  of  presentment  and  protest,  88. 
Taking,  as  waiver  of  mechanic's  lien,  164,  166. 

intention  of  parties  to  govern,  166. 

not   inconsistent   with    lien,    166. 
What  is  collateral  security,  167. 
As  waiver  of  vendor's  lien,  172,  173. 

COMPETENCY: 

(See:     Witness;  Objection;  Evidence.) 

COMPLAINT;  COMPLAINTS: 

Defects  in,  to  be  insisted  on  by  defendant,  370. 
otherwise  waived,  370. 
raised  by  motion  or  demurrer,  370. 
not  first  raised  on  appeal,  370. 
not  waived  by  demanding  bill  of  particulars,  371. 
nor  by  failure  to  demur,  371. 

nor  by  submitting  demurrer  without  argument,  371. 
waived  by  pleading  to  merits,  371. 

by  answering  after  overruling  of  demurrer,  373. 

held  waiver  of  defects,  373. 
contra,  374. 

COMMUNICATIONS,  PRIVILEGED: 
Giving  evidence  of,  190. 
Between  attorney  and  client,  191. 
waived   by   administrator,    191. 
by  partner,   191. 
by  conduct,   191,    192,   193. 
by  signing  will,  192. 
by   signing   mortgage,   192. 
waiver  of,  may  be  oral,  193. 
facts  amounting  to,  194. 
client  becoming  witness,  195. 
Between  physician  and  patient,  196. 
waiver  of,  by  attorney,  196. 
by  assignee,  196. 
by  heir-at-law,  196. 
by  guardian,   196. 
waived  by  implication,  197. 
calling  physician  as  witness,  197. 
failing  to  object  to  testimony,  197. 
patient  testifying,  197. 
waived  by  other  acts,  197. 
Between  husband  and  wife,  198. 
statutory  provisions  for,  198. 
waiver  by  acts  of  parties,  198. 

CONDITION;   CONDITIONS: 
Breach  of,  for  support,  55. 
Promise  on,  must  be  accepted,  85. 
Breach  of,  in  mortgage,  131. 

by  failing  to  pay  interest,  132. 
Subscriptions  to  corporation  on,  227. 

no  liability  on,  till  performed,  227. 

waived  by  subscriber,  228. 


482  INDEX. 


[References  are  to  sections.] 

by  silence,  228. 

by  conduct,  230,  232. 

by  subscribing  prior  to  incorporation,  230. 

by  paying  for,  230,  232f 

by  part  payment  for,  231,  232. 
In  Insurance  contracts,  264,  et  seq. 
waiver  of,  forbidden,  264. 
agents  may  waive,  265,   266,  270. 
wbetber  clerks  of  agents  may  waive,  272. 
officers,  power  of  to  waive,  270. 
sub-agents,  powers   of,   272. 
waiver  of,  against  additional  insurance,  273. 
breach  of,  prior  to  delivery  of  policy,  277. 

waived  by  delivering  policy,  277. 

by  silence  of  insurer,  278. 
as  to  title,  waiver  of  by  insurer,  279,  291,  292. 

by  delivering  policy,  279,  280. 

by  other  conduct,  291. 
as  to  encumbrances,  waiver  of  by  insurer,  282. 

by  failing  to  inquire,  282. 

by  agent's  failure  to  mention,  282,  284. 

by  agent's  advising  not  to  mention,  282. 

by  issuing  policy,  282,  284. 

by  receipt  of  premiums,  282. 
as  to  vacancy  of  house,  knowledge  of,  285. 

delivering  policy  waives,  285. 
as  to  use  of  premises,  waiver  of,  286. 

waived  by  delivering  policy,  286. 
as  to  prior  insurance,  waived  by  conduct,  287. 

knowledge  of  by  agent,  287,  288. 

waived  by  taking  premiums,  287,  288. 
by  delivering  policy,   287,  288. 

renders  policy  voidable,  287. 
as  to  "iron-safe"  requirement,  289,  290. 
breach  known  by  agent,  289. 

waived  by  delivering  policy,  289. 
by  other  conduct.  289,  290. 
by  acquiesence,  290. 
as  to  vacancy,  after  delivery  of  policy,  293. 

whether  waived  by  an  agent,  293. 

endorsing  consent  on  policy,  293,  294. 

not  waived   by   silence,   294. 
as  to  encumbrances,  after  delivery  of  policy,  295,  296. 

waived  by  assent  or  conduct,  295,  296. 
mis-use  of  premises  subsequent  to  issue  of  policy,  297,  298. 

not  waived  by  silence  of  agent,  297,  298. 

nor  failure  to  cancel  policy,  297. 
additional  insurance,  waiver  by  agent,  299,  301. 

by  treating  policy  as  still  in  force,  299,  302. 

consent  indorsed  on  policy,  300. 

silence  of  insurer,  301,  302,  303. 

oral  waiver,  302. 

failure  to  cancel  policy,  303. 

collecting  premiums,  303. 
forfeitures  for  breach  of  conditions,  315. 
See:     Premiums. 


INDEX.  483 


[References  are  to  sections.] 

CONDITIONAL  SALE: 

Of  goods,  waived  by  delivery  without  payment,  32,  33. 
Title  waived  by  giving  credit,  34. 

CONDITION  PRECEDENT: 

Strict  performance,   to   payment,   18. 
Payment  as,  to  passing  title,  33. 
Waived  by  giving  credit,  34. 
Arbitration  as,  waived,  42. 

CONDITIONS  SUBSEQUENT: 
Breach  of,  waived,  58. 

By  treating  contract  as  in  force  after  breach,  68. 
Once  waived,  not  revived,  58. 
Breach  of,  waived  by  laches,  59. 
No  liquor  to  be  sold  on  premises,  59. 
Payment  of  rent  by  certain  time,  60. 
Breach  of  by  tenant,  landlord  must  act  promptly,  60. 
Permitting  tenant  to  hold  over,  no  waiver  of  breach  of,  60. 
Breach  of,  does  not  ipso  facto  terminate  lease,  61. 
Breach  of,  not  waived  by  lease  to  another,  61. 
Breach  of,  waived  by  accepting  rent,  62. 
not  by  receiving  rent  from  assignee,  63. 
not  by  accepting  payment  after  a  breach,  63. 
For  payment  of  taxes  by  tenant,  63. 

CONDUCT: 

Intention  to  waive  time,  shown  by,  45. 
If  compulsory,  no  waiver,  45. 
Tender,  waiver  of  shown  by,  46. 
Showing  tender  would  be  refused,  47. 
Mis-leading,  waives  forfeitures,  52,  54. 
Of  railroad,  waiving  forfeitures,  53. 
Waiver  may  be  by,  1. 
Intention  inferred  from,  2. 
Inconsistent,  waiver  by  in  bills  and  notes,  72. 
Waiver  implied  from,  73. 
Waiving  presentment,  protest,  etc.,  80,  81. 
Of  endorser,  legal  presumption  from,  81. 
Inconsistent,  by  mortgagee,  waives  lien,  123. 
waives  breach  of  condition,  131. 
non-payment  of  interest,  132. 
Waiving  entry  to  foreclose,  137. 

foreclosure  sale,  141. 
Waiving  carrier's  lien,  150. 
Waiver  of  mechanic's  lien  by,  157,  et  seq. 
Statute  of  frauds,  waived  by,  176. 
Waiver  of  exemptions  by,  185,  et  seq. 

subsequent  to  making  of  debt,  185. 
Waiver  of  privileged  communications  by,  191. 
Waiver  by,  of  redemption,  213. 

of  statute  of  limitations,  216. 

of  conditions  in  subscriptions  to  stock,  230,  232. 

of  defects  in  subscriptions,  235. 

of  irregularities  in  transfer  of  shares,  252. 


484  INDEX. 


[References  are  to  sections.] 

CONFIDENTIAL  COMMUNICATIONS: 
Giving  evidence  of,  waiver  by,  190. 
Between  attorney  and  client,  191. 
Waiver  by  administrator  of  client,  191. 
by  partner,  191. 
by  conduct,  191. 
by  signing  will,  192. 
by  signing  mortgage,  192. 
Waiver  of  may  be  oral,  193. 
Facts  waiving,  194. 
Client  becoming  witness,  195. 
Between  physical  and  patient,  196. 
waived  by  attorney,  196. 
by  assignee,  196. 
by  heir-at-law,  196. 
by  guardian,   196. 
waiver  of,  by  implication,  197. 
calling  physician  as  witness,  197. 
failing  to  object,   197. 
patient  testifying,  197. 
waived  by  other  acts,  197. 
Between  husband  and  wife,  198. 
statutory  provision  for,  198. 
waived    by   testifying,    198. 
by  failing  to  object,  198. 
by  other  acts,   198. 

CONSIDERATION: 

Must  be  restored  In  rescission,  66. 

None  essential  to  waiver,  4. 

In  executory  promise,  4. 

For  waiver  in  bills  and  notes,  104. 

none  necessary,  104. 

necessary  if  waiver  after  execution,  105. 
For  promise  of  endorser,  to  pay  after  discharge,  109. 
For  waiver  of  redemption,  206. 

must  be,  208,  213. 
Whether,  to  waive  statute  of  limitations,  216. 

CONSTITUTION: 

May  prohibit  waiver  of  exemptions,  182. 

Guarantees  jury  trial,  394. 

Prohibits  second  jeopardy,  389. 

Jury  trial  not  guaranteed  by,  in  misdemeanors,  398. 

Accused,  protection  of  from  self-crimination,  399. 

Guarantees  accused  right  to  be  present  at  trial,  404. 

CONTRACTS: 

Executory,  defects  in  waived  by  acceptance,  15. 

Substantial  performance  of,  16. 

Abandonment  of,  entitled  to  compensation,  17. 

if  abandonment  willful,  17,  27. 
Default  in  caused  by  other  party,  no  liability,  27. 
Refusal  to  perform,  17. 
Proceeding  under,  after  breach,  22. 

waiver,  if  with  knowledge,  23. 


INDEX.  485 


[References  are  to  sections.] 

Preventing  performance,  a  waiver,  25,  43. 

contractor   entitled  to  recover,  25. 
Refunding  payments   received  under,  26. 
Impossibility  of  performance  caused  by  one  party,  other  not 

liable,   28. 
Demanding  illegal  performance,  is  prevention,  29. 

or   rendering   self   unable  to   perform,   29. 
Refusing  to  treat  contract  as  subsisting,  30. 

refusal  must  be  unequivocal,  31. 

and  acted  on  by  other  party,  31. 
Time,  as  essence  of,  35. 

not  in  equity,  36,  37. 

is,  when  so  intended,  37. 

may  be  waived,  39. 

by  part  payment  under  contract,  40. 

accepting  part  payment  over-due,  40,  41. 

waived,   if   delay   caused   by   other   party,   43. 
Right  to  rescind,  waived  by  acceptance,  40. 

by  extending  time,  42. 
Forfeiture  under,  is  waived  by  acceptance,  40. 

where  not  insisted  on,  43. 

Delay  in  performance  caused  by  contractee,  44. 
Breach  of  condition  for  future  support,  56. 
Induced  by  fraud,  65. 
Action  to  enforce,  waives  rescission,  67. 
Judgment  on,  waives  fraud  in,  67. 
Voidable,  waiver  of,  68. 

Proceeding  under,  waives  right  to  rescind,  69,  71. 
Receipts  under,  to  be  returned  on  rescission,  71. 
Of  infants,  8. 

Infant  must  avoid  in  reasonable  time,  8. 
Of  indorsement,  75. 
Oral,  pleading,  177,  178,  179. 
Proof  of,  177,  179. 
Concurrent,    to   waive   exemptions,   183. 

against  public  policy,  183. 

by  single  man,  184. 
In  mortgage,  to  waive  redemption,  200. 
Parol,  to  waive  right  to  redeem,  209,  213. 
Of  subscription  to  shares  of  corporation,  227,  et  seq., 

fraud  in,  renders  voidable,  237. 

ratified  by  acquiescence,  237. 
Of  Insurance:     (See:   Insurance.) 
Right  to  sue  in  tort  or  on  implied,  343,  349,  350. 

choice  of  one  waives  other,  343. 

only  where  property  converted  into  money,  343. 
Fraud  in,  waiver  of,  345. 
Deceit  in,  waiver  of,  346. 

Election  between,  and  tort,  shown  only  by  pleadings,  361. 
Election  between,  and  tort,  results  of,  351. 
Plea  of  infancy  in  suits  on,  351. 

CONTRADICTORY: 

Positions,  not  allowable,  65. 
by  mortgagee,  123. 


486  INDEX. 

[References  are  to  sections.] 

CONVERSION: 

May  waive  tort,  and  sue  for  value  in,  348,  349. 
if  property  changed  to  money,  348. 

CONVEYANCE: 

Of  property,  as  waiver  of  exemptions,  185. 
Absolute,  but  mortgage  in  fact,  redemption  from,  203. 
To  mortgagee,  waives  right  to  redeem,  207. 

CORPORATIONS: 

Shares  in,  conditions  in  issue  of,  227. 
Conditions  in  shares  waived  by  subscriber,  228,  et  seq. 
must  be  with  knowledge  of  rights,  228. 
may  be  by  silence,  228. 
by   conduct,    230. 

by    subscribing   prior    to    incorporation,    230. 
by  paying  calls,  230,  232. 
by  part  payment,  231,  232. 
by  waiving  notice  of  meeting,  231. 
Fraud  in  subscriptions  to,  233. 
Waiver  of  defects  in  subscriptions  to,  235. 

irregularities  in,  236. 
Fraud  makes  subscriptions  voidable,  237. 
waived  by  acquiescence,  237. 

by  other   acts,   238. 
What  are  by-laws  of,  239. 
waiver  of,  239. 

by  officers,  239. 

Meetings  of,  to  be  regularly  called,  241. 
irregularities  in,  may  be  waived,  242. 
must  be  by  all  members,  242. 
waived  by  attendence,  242. 

by  subsequent  ratification,  242. 
notice  of,  cannot  be  waived,  243. 

contra,  244. 

Assessments  of,  what  are,  245. 
irregularities  in,  effect  of,  245. 
waived,  how,  245. 

by  ratification,  245. 
by  participating  in  levying,  245. 
Forfeiture  of  shares  for  non-payment,  246. 
waiver  of,  by  delay  in  enforcing,  246. 
enforcing,  waives  right  to  sue,  247. 
Irregularity  in  enforcing,  waived,  248. 

by  acquiescence,  248. 

Stock  in,  transfer  of,  must  be  on  books,  249. 
powers  of  assignor  and  assignee,  249. 
irregularities  in,  waived  by  corporation,  250. 

by  recognizing  assignee,   250,   251. 
where  legal  title  rests,  251. 
consent  of  directors  to,  252. 
Lien  on  shares,  how  created,  253. 

is  waived  if  not  asserted,  253,  254. 

purchaser  ignorant  of,  254. 

not  waived  by  taking  security,  254. 


INDEX.  487 


[References  are  to  sections.! 

by  looking  to  personal  liability  of  holder,  264. 
certificate  reciting  fully  paid,  255. 
certificate  should  show  lien,  256. 
corporation  bound  by  certificate,  256. 
registration  waives  lien,  257. 
waived  by  giving  credit,  257. 
Charter  of,  right  of  state  to  forfeit,  258. 
waiver  of  right,  258. 
Illustrations  of  waiver,  259,  260. 
cases  where  right  not  waived,  261. 

CRIMES;    CRIMINAL  LAW: 

Plea  of  not  guilty,  statute  of  limitation  relied  on  under,  226. 
Statute  of  limitation,  raised  by  special  plea,  226. 
waived  unless  taken  advantage  of  on  trial,  226. 

and  before  verdict,  226. 
Jurisdiction  over  accused,  given  by  appearance,  386. 

waived  by  pleas,  386. 
Extradition,  waived,  387. 
Indictment  stating  no  offense,  388. 

cannot  be  waived  by  accused,  388. 

Second  jeopardy,   constitutional   guaranty   against,   389. 
asserted   by   special  plea,   or  waived,   389. 
not  defense  under  general  denial,  389. 
new  trial  is  waiver  of,  390. 
moving  to  set  aside  verdict,  390. 
fraud  in  first  trial,  392. 
waives  plea  of,  392. 
Right  to  jury  trial,  394,  et  seq. 

may  be  waived  in  misdeameanors,  394. 

not  in  felonies,  394. 
not  entitled  to  at  common  law,  394. 
number  of  jurors,  396,  et  seq. 
in  felonies,  397. 

cannot  be  waived,  397. 
nor  consented  to,  397. 
Self-crimination,  399,  et  seq. 

privilege  not  a  bar  to  testifying,  399. 
waived  by  testifying,  399. 
how  far  a  waiver,  400,  401. 
cross-examination  of  accused,  400,  401. 
Right  of  accused  to  be  present  at  trial,  403,  et  seq. 
crimes  less  than  capital,  404. 
right  may  be  waived,  404. 
waived  by  voluntary  absence,  404. 
in  capital  offenses,  405. 

right  cannnot  be  waived,  405. 
attorney  cannot  waive  right  for  accused,  406. 

CRIMINATION  OF  SELF: 

Constitutional  protection  of,   399. 

not  a  bar  to  testifying,  399. 
Privilege  waived   by  testifying,   399. 

how  far  waived,  400. 

cross-examination  of  accused,  how  far,  400,  401. 

accused  treated  same  as  other  witnesses,  402. 


488  INDEX. 

[References  are  to  sections.] 

By  witness,  420,  et  seq. 
what  is  privilege,  420. 

answers  having  tendency  to  criminate,  420. 
privilege  must  be  claimed,  421,  423. 
when  to  be  claimed,  422. 
whether  attorney   may  claim,  423. 
extent  of  waiver  of,  424. 

testifying  before  grand  jury  as  waiver  of,  425. 
before  coroner's  inquest,  425. 

CROSS-EXAMINATION : 

Of  accused,  how  far,  400. 

Not  waiver  of  incompetency  of  witness,  419. 

CUSTOM: 

Waiver  by,  of  presentment  and  protest,  73. 

of  defects  in  transfer  of  shares  in  corporation,  252. 
Lien  on  shares  of  corporation  created  by,  253. 
To  receive  payment  of  premiums  after  maturity,  312,  313. 

DAMAGES: 

Not  waived  by  accepting  defective  machinery,  15,  23. 

May  be  recovered  for  defects  discovered  after  acceptance,  15. 

For  incomplete  performance,  17. 

After  acceptance  of  defective  articles,  21. 

Not  waived  where  objection  made  at  time  of  acceptance,  21. 

Waived,  if  inspection  would  disclose  defects,  22. 

Not  recovered  where  performance  prevented,  25. 

Contractor  prevented  from  performing  may  recover  special, 

26. 

Liquidated,  not  liable  if  other  party  to  blame  for  default,  43. 
Waived,  where  time  waived,  44. 
From  fraud,  66. 
Waived,  by  ratification  of  fraudulent  contract,  66. 

unless  fraud  is  unknown,  66. 
Not  waived  by  rescission,  67. 

nor  by  sale  of  part  of  property,  71. 

For  false  representations,  not  waived  by  keeping  property, 
345. 

DECEIT: 

Not  waived  by  accepting  payment  of  note,  345. 

How  waived,  346. 

Action  for,  though  contract  performed,  347. 

DEED: 

Executing,  waives  forfeiture  in  land  contract,  56. 
Condition  subsequent  in,  breach  of,  waived,  58. 
Absolute  in  form,  but  mortgage  in  fact,  129. 

agreement  in,  to  waive  redemption,  201,  202. 
Of  trust,  right  to  redeem  from,  204. 

DEFAULT: 

Under  contract,  waiver  of,  22,  et  seq. 

by  proceeding  after,  22,  24. 

must  be  with  knowledge,  23. 
Waiver  of,  a  question  of  intent,  24. 
Caused  by  other  party,  no  liability,  27. 


INDEX.  489 


[References  are  to  sections.] 

In  payment  for  goods  delivered,  34. 
Party  not  In,  entitled  to  damages,  38. 
In  performance  of  contract,  waiver  of,  39. 
Waived  by  proceeding  after  time  limit,  39. 

by  permitting  other  party  to  continue,  40. 
Waived  where  performance  prevented  by  other  party,  43. 
One  party  to  blame  for,  other  not  liable  to  damages,  43. 
Proceeding  after,  waiver  of,  56. 
In  payment,  waived,  56. 
Delay  in  giving  notice  after,  no  waiver,  57. 
Of  tenant,  not  waived  by  landlord,  61. 
In  payment  of  rent,  waived  by  acquiescence,  62. 
Future,  not  waived,  63. 
Judgment  by,  against  infant,  18. 
Not  waived  by  unaccepted  offer,  86. 

Of  holder  of  note  or  bill,  not  waived  by  endorser  without 
knowledge  of  facts,  88,  89. 

waived  by  payment,  95. 
Of  mortgagor,  in  paying  interest,  131,  132. 
Of  mortgagor,  waived  by  conduct  of  mortgagee,  132,  et  seq. 
Of  mortgagor,  in  paying  taxes  or  insurance,  135. 
Judgment  by,  waives  exemption  from  service,  366. 

DEFECTS: 

In  performance  of  contract,  12,  et  seq. 

must  be  discoverable  from  inspection,  12. 

must  be  diligent  to  discover,  12. 

not  waived  by  acceptance  if  involuntary,  13. 
Visible,  waived  by  acceptance,  15. 
Latent,  not  waived  by  acceptance,  15,  23. 

nor  by  occupancy  of  building,  15. 
Not  objected  to,  waived,  22. 
In  foreclosure  sale,  waiver  of,  145,  et  seq. 
In  subscription  to  stock  of  corporation,  waiver  of,  235. 
In  notice  of  loss  under  insurance  policy,  waived,  323. 
In  proofs  of  loss,  waived,  329. 

by  objection  on  other  grounds,  329. 
In  process,  waiver  of,  353. 
Appearance,  to  waive,  must  be  actual,  356. 
Illustrations  of  appearance  waiving,   357,   359. 
In  process,  waived  by  going  to  trial,  358. 

waived  after  judgment,  359. 

not  waived  by  special  appearance,  362,  363,  364. 
In  complaint,  must  be  insisted  on  by  defendant,  370. 

otherwise  waived,  370. 
In  attachment  proceedings:     See:     Attachment. 

DEFENSE: 

Failure  of  presentment  no,  where  waived,  82. 

Of  statute  of  frauds,  personal  to  defendant,  177,  178,  179. 

must  be  pleaded  by  defendant,  178. 
Statute  of  frauds  as,  on  cross-bill,  181. 

DEFENDANT: 

Statute  of  frauds  to  be  proved  by,  177. 
to  be  pleaded  by,  177,  178,  181. 


490  INDEX. 


[References  are  to  sections.] 

Limitations,  statute  of,  must  be  pleaded  by,  225. 

May  waive  process,  352. 

General  appearance  of,  See:     Appearance. 

Ignorant  of  defects  in  process,  354. 

Process  not  waived  by  special  appearance  of,  364. 

Answering  after  overruling  of  demurrer,  373. 

held  waiver  of  defects,  373. 

contra,  374. 

Mis-joinder,  not  waived  by  answering,  375. 
Waiver  by,  of  objections  to  venue,  379. 
Jurisdiction  over,  in  criminal  prosecutions,  386. 

waived  by  appearance  or  plea,  386. 
Cannot  waive  jurisdiction  over  offense,  386. 
Waiver  of  extradition  by,  387. 

Cannot  waive  failure  of  indictment  to  state  offense,  388. 
Not  compelled  to  criminate  self,  399. 

privilege  waived  by  taking  stand,  399. 

how  far  waiver  extends,  400,  401. 

treated  same  as  other  witnesses,  402. 
In  criminal  case,  right  to  be  present  at  trial,  403. 

waiver  of  right,   404. 

in  capital  offenses,  405. 

attorney  cannot  waive  right  for,  406. 

DELAY: 

Party  not  liable  for,  if  other  to  blame,  43,  44. 

In  action  on  insurance  policy,  43. 

In  claiming  forfeiture,  waiver  of,  55. 

In  giving  notice  after  default,  no  waiver,  57. 

In  paying  rent,  acquiesced  in  by  landlord,  62. 

In  rescission,  fatal,  70. 

Request  for,  waiver  by  endorser,  83. 

In  enforcing  mortgage,  128. 

By  attorney,  no  waiver  of  lien  for  fee,  155. 

In  claiming  exemptions,  as  waiver  of  right,  185. 

In  redeeming,  waives  right,  210,  212. 

DELIVERY: 

Of  goods,  payment  for  on,  waived,  32. 
by  absolute  delivery,  32. 
seller  must  demand  payment,   32. 
Not  to  pass  title  on,  until  payment  made,  33. 
Default  in  payment  on,  waived,  34. 
Of  policy  with  knowledge  of  invalidity,  a  fraud,  277. 
waives  breach  of  condition  as  to  title,  279,  281. 
as  to  encumbrances,  282,  284. 
as  to  vacancy,  285. 
as  to  use  of  premises,  286. 
as  to  pre-payment  of  premium,  306,  307. 

DEMURRER: 

Right  to  general,  not  waived,  371. 

by  failure  to  demur,  371. 

failing  to  argue  demurrer,  371. 
Ground  of  general,  cannot  be  waived,  371. 
Waived  by  failure  to  submit,  372. 


INDEX.  491 


[References  are  to  sections.] 

Filing  answer  after  overruling  of,  373. 
Held  waiver  of  defects,  373. 
Error   in   overruling,    378. 

waived  by  amending  pleading,  378. 

by  offer  to  amend,  378. 
To  evidence,  452,  et  seq. 

waived    by   introducing   evidence,    453. 
When  taken,  453. 
Must  be  exception  to  ruling  on,  454. 

DENIAL  OF  LIABILITY: 

By  maker  of  note,  no  waiver  of  demand,  87. 
By  insurer,  waives  proof  of  loss,  325. 

on  other   grounds,   326. 

waives  right  of  arbitration,  340. 

DEPOSITIONS: 

Statutory  requirements  as  to,  417. 

Must  be  on  notice,  417. 

Defective  or  lack  of  notice,  waived,  417. 

by  participating   in   taking  of,   417. 

by  cross-examining  witness,  417. 

Defects  in  waived,  unless  motion  to  suppress  be  filed,  417. 
Objection  to,  must  be  made  when  taken,  418, 

waiver  by  other  facts,  418. 

DISAFFIRMANCE : 

Rights  to,  under  fraudulent  contract,  68. 

Act  of,  conclusive,  68. 

Attachment,  an  affirmance  of  contract,  68. 

held  a  disaffirmance,  68. 
Of  contract,  by  infant,  8. 

must  be  in  reasonable  time,  8. 

Of  voidable  subscription  to  stock  in  corporation,  238. 
Of  act  of  tort-feasor,  343. 

DITCHES: 

Acceptance  of,  no  waiver  of  defects  in,  14. 

DRAFT: 

Drawing,  as  waiver  of  mechanic's  lien,  163. 

EJECTMENT: 

Brought  to  enforce  forfeiture,  58. 

ELECTION: 

To  affirm  sale,  waives  right  to  re-take  goods  delivered,  65. 

Complement  of  waiver,  65. 

Of  one  remedy,  waives  others,  65,  68. 

Of  infant,  waives  right  to  avoid,  8. 

To  attach,  waives  mortgage  lien,  112. 

Of  remedies,  under  mortgage,   118,  119. 

To  take  personal  liability,  waives  carrier's  Hen,  150. 

Between  attachment  and  mechanic's  lien,  169. 

To  claim  exemptions,  186. 

To  ignore  statute  of  limitations,  216. 

To  forfeit  shares,  waives  right  to  sue,  247. 


492  INDEX. 

[References  are  to  sections.] 

Between  tort  and  implied  contract,  343. 

To  affirm  tort,  irrevocable,  344. 

Of  remedies,  347. 

To  sue  for  conversion,  instead  of  value  of  goods,  348. 

illustrations  of,  350. 
Indicated  only  by  pleadings,  351. 

ENCUMBRANCES: 

Application  for  insurance  failing  to  disclose,  282. 
Waiver  by  insurer's  failing  to  inquire,  282. 

by  agent's  failing  to  mention,  282. 

by  agent's  advising  not  to  mention,  282,  284. 

by  delivering  policy,  282,  284. 

by  receipt  of  premiums,  282. 

knowledge  by  insured,  of  false  answer,  283. 
Subsequent  to  deliver  of  policy  of  insurance,  295,  296. 

waived  by  assent  or  conduct,  295,  296. 

ENTRY  TO  FORECLOSE: 
Waived  by  conduct,  137. 
Not  waived  by  release  of  judgment,  138. 
Waived  by  judgment  at  law,  138. 

by  extension  of  time,  139. 

by  agreement  to  re-convey,  139. 
Waiver  of  must  be  by  holder  of  mortgage,  140. 

EQUITY   OF   REDEMPTION: 

Not  attachable,  112. 

Levy  of  execution  on,  121. 
Sale  of,  121,  124. 
Cannot  be  waived  in  mortgage,  199,  200,  201. 

even  though  such  be  intention,  200. 

in  deed  as  mortgage,  201. 
By  separate  instrument,  202,  204. 
In  absolute  conveyance,  203. 
In  deed  of  trust,  204. 
Waived  by  agreement  after  mortgage,  205,  206,  207,  208. 

must  be  voluntary,  206. 

by  conveyance  to  mortgagee,  207. 

by  parol  agreement,  209. 

statute  of  frauds  affecting,  209. 
Is  equitable  right,  210. 

Must  be  exercised  in  reasonable  time,  210,  213. 
Time  for,  provided  by  statute,  211. 
Lost  by  laches,  212. 

by  other  conduct,  213. 
Must  be  consideration  for  waiver  of,  208,  213. 

with  knowledge,  214. 

EQUITY: 

Forfeitures  not  favored  In,  52. 
Deed  considered  as  mortgage,  201. 
Redemption,  right  in,  209. 

ESTOPPEL: 

Waiver  by,  3,  91. 


INDEX. 

[References  are  to  sections.] 

EVIDENCE: 

Of  promise  to  pay  by  endorser,  90. 
Presumptive  of  notice,  90,  91. 
Prima  facie,  of  demand  and  protest,  96. 
Prime  facie,  of  payment  of  note,  159. 
Privilege  from  giving,  190. 

between  attorney  and  client,   191. 
Objection  to  inadmissible,  when  offered,  necessary,  427. 

when  taken,  428. 

when  too  late,  428. 

to  parol,  428,  433. 

to   secondary,   429. 

to  documentary,  429. 

to  incompetent,  430. 

variance  from  pleadings,  429,  433. 
Specifying,   in  objection,   431. 

General  objection  to,  on  trial,  waives  special  on  appeal,  432, 
436,   437. 

where  part  of  evidence  admissible,  432. 
Objection  for  incompetency  of,  433. 

waives  other  grounds  of  objection,  433. 
Objection  to  as  incompetent,  irrelevant  and  immaterial,  434. 

evidence  partly  admissible,  435. 

where  admissible  for  any  purpose,  436. 

waives  objection  to  competency  of  witness,  437. 

other  objections,  437. 
Exceptions  to  foregoing  rules,   438. 
Objections  waived  if  abandoned,  439. 

illustrations  of  such  waiver,  439. 
Variance  of,  from  pleadings,  440. 

excluded  on  motion,  440. 

must  be  objected  to  in  lower  court,  440. 

objection  on  other  grounds,  440. 

when  objection  to  be  made,  440. 
Exclusion  of,  must  be  excepted  to,  444. 

time  for  exception,  444,  445. 

exceptions  must  specify  grounds,  444,  445. 
Insufficiency  of,  to  sustain  verdict,  447. 
Introducing,  as  waiver  of  right  to  non-suit,  448,  449. 
Demurrer  to,  452. 

waived  by  introducing  evidence,  453. 

when  taken,  453. 

exception  must  be  taken  to  ruling  on,  454. 

EXCEPTION;  EXCEPTIONS: 

To  ruling  on  objection  to  incompetent  witness,  419. 
To  any  ruling,  essential  to  appeal,  426. 
Must  follow  overruling  of  objection,  441,  446. 
Must  specify  ruling  objected  to,  441. 
Must  be  to  each  ruling,  442,  443. 
To  exclusion  of  evidence,  443. 

when  taken,  443. 

must  be  specific,  443. 
To  admission  of  evidence,  444,  445. 

time   for,   444,   445. 

must  specify  grounds,  444,  445. 
To  competency  of  witness,  446. 


494  INDEX. 


[References  are  to  sections.] 

To  order  of  proof,  446. 
To  ruling  on  motion  for  non-suit,  451. 
To  ruling  on  demurrer  to  evidence,  454. 
To  instructions,  giving  of,  460. 

must    follow   objection,    460. 

form  of,  460. 

must  point  out  defects,  461. 

what  waived,  462. 
To  refusal  to  instruct,  465. 

error  waived  without,  465. 

error  must  be  pointed  out  in,  466. 
On  one  ground,  waives  others,  466. 
Time   for,   467. 
Statutory  provision  as  to,  457. 
To  findings  of  fact,  470. 

EXCLUSION: 

(See:  Evidence;  Exceptions;  Practice) 

EXECUTION: 

Levy  of,  waives  lien  of  chattel  mortgage,  116. 

not  where  property  exempt,  116. 

not  where  execution  abandoned,  116. 
No  waiver  of  lien  of  real  estate  mortgage,  119,  120. 

on  mortgaged  premises,  121.  122,  123. 

on  equity  of  redemption,  121. 
On  goods,  waives  carrier's  lien,  151. 
As  waiver  of  mechanic's  lien,  169. 

of  vendor's  lien,  174. 
Levy  of,  on  exempt  property,  185. 

EXEMPTIONS: 

Whether  can  be  waived,  182. 

Are  for  debtor's  family,  182. 

May  be  waived  unless  prohibited  by  constitution,  182. 

Whether  waived  by  concurrent  agreement,  183. 

against  public  policy,  183. 

debtor  must  be  head  of  family,  184. 

by  single  man,  184. 
For  benefit  of  poor  and  needy,  184. 
Waiver  of  in  note,  184. 

in  confession  of  judgment,  184. 

to  pay  debt  from  insurance,  184. 
Waiver  by  conduct,  185,  et  seq. 

after  agreement,  185. 

by  inconsistent  conduct,  185. 
Must  be  claimed  in  reasonable  time,  185. 
Pledge  as  waiver  of,  185. 
Abandonment  of  business  as  waiver  of,  185. 
By  conveyance  of  property,  185. 
Waived  by  laches,  185. 
Of  partners,  185. 

Not  waived  by  failure  to  claim  till  sale  of  property,  188. 
Failing  to  elect  between,  186. 
Directing  levy  on  certain  property,  186. 
Traversing  attachment  on  other  grounds,  18C. 


INDEX.  495 


[References  are  to  sections.] 

Agreement  to  turn  over  other  property,  186. 

Receipting  officer  for  goods,  186. 

Homestead,  187,  188. 

Need  not  be  claimed,  188,  189. 

Wife  may  claim,  188. 

Not  divested  by  judgment,  189. 

Plea  of,  in  judgment  in  tort,  351. 

From  service  of  process,  366. 

who  are  exempt,  366,  368. 

right  must  be  claimed,  366,  368. 

waived  if  not  claimed,  366. 

by  permitting  default  judgment,  366. 
By  entering  appearance,  366. 

FACTS: 

Knowledge  of,  essential,  66. 

Avoiding  contract,  68. 

What  is  reasonable  time,  depends  on,  70. 

Knowledge  in  presentment  and  protest,  73. 

necessary  for  waiver  by  endorser,  88,  89. 
In  entry  to  foreclose  mortgage,  137. 

foreclosure  sale,  142. 
Knowledge  of  essential  to  set  aside  foreclosure  sale,  144. 

FALSE  REPRESENTATIONS: 

By  mortgagee,  waives  priority,  129. 
Retaining  property  after  discovering,  345. 
That  mortgage  is  prior  lien,  345. 

FELONIES: 

(See,  Crimes;   Criminal  Law.) 

FINDINGS  OF  FACT: 
Defects  in,  must  be  objected  to,  470. 
Exceptions  to,  470. 

FORECLOSURES: 

Only  remedy  under  mortgage,  121. 
Waiver  of  right,  131. 

by  extension  of  time,  132. 
For  non-payment  of  interest,  132,  133. 

of  part  of  principal,  134. 

of  taxes  or  insurance,  135. 
From  failure  to  pay  part  of  principal,  136. 
Entry  for,  waived  by  conduct,  137. 

not  by  release  of  judgment,  138. 
Possession  is  form  of,  138. 
Waived,  by  judgment  at  law,  138. 
Entry  for,  waived  by  other  conduct,  139. 
Waiver  of  must  be  by  holder,  140. 
Sale  under,  waiver  of  by  agreement,  141. 

by  extension  of  time,  141. 

irregularities  in  waived  by  redemption,  145. 


496  INDEX. 

[References  are  to  sections.] 

FORFEITURES: 

Waived  by  acceptance  of  payment,  40,  45. 
Waived  where  not  insisted  on,  43. 

Not  favored  at  law  or  in  equity,  52. 
Is  financial  punishment,  52. 

Party  cannot  claim,  if  caused  by  his  own  act,  52. 
Benefit  of,  may  be  waived,  52. 
Slight  acts  show  waiver  of,  53. 
Waived  by  silence  of  landlord,  54. 
Waived  prior  to  accrual  of  right  to,  54. 
Delay  in  claiming,  waiver  of,  55. 
Waived  unless  contract  rescinded  promptly,  56. 

by  extending  time  of  payment,  56, 

by  proceeding  after  default,  56. 
Waived  by  suing  for  specific  performance,  56. 
In  land  contract,  waived  by  executing  deed,  56. 
Waived  by  implication,  56. 

by  transferring  purchase  notes,  56. 
Vendor  accounting  with  vendee,  waives,  57. 
In  deed,  waived,  unless  entry  made,  58. 
Not  waived  by  failure  of  formal  act,  59. 
For  sale  of  liquor  on  premises,  59. 
Not  waived  by  permitting  tenant  to  hold  over,  60. 
Tenant  liable  to,  cannot  set  up  own  default,  61. 
Landlord  waives  by  accepting  rent,  62. 

by  acquiescence  in  delayed  payment  of  rent,  63. 
Not  waived  by  accepting  rent  after  notice  to  quit,  63. 
For  future  breach,  not  waived  by  accepting  rent,  63. 
Must  be  claimed  during  term  of  lease,  63. 
Declared,  if  tenant  sub-lets,  64. 
Waiver  of,  by  taking  rent  from  sub-lessee,  64. 
Waiver  of  in  mortgages,  132,  et  seq. 

For  non-payment  of  interest,  waived  by  extension  of  time, 
132. 

insurance  or  taxes,  135. 
Of  shares  in  corporation,  right  conferred  only  by  statute,  246. 

waived  by  delay  in  declaring,  246. 

enforcing,  waives  right  to  sue,  247. 

irregularity  in,  waived,  248. 
Of  charter,  by  corporation,  258.  et  seq. 

waived  by  permitting  corporation  to  continue,  258. 

illustrations  of  waiver  of,  259,  260. 
In  insurance  contracts,  266. 

waived  by  agents  of  insurer,  266. 

of  policy,  by  change  in  title,  291. 

by  subsequent   encumbrances,   295. 

for  mis-use  of  premises,  297. 

for  additional  insurance,  waiver  of,  299. 

by  treating  policy  as  in  force,  299. 

for  non-payment  of  premiums,  306,  308. 

waived  by  recognizing  policy,  315. 

for  breach  of  condition  in,  315. 

waived  by  failing  to  cancel  policy,  315. 

knowledge  of  agent  imputed  to  insurer,  316. 

for  failure  to  give  notice  of  loss,  319. 


INDEX.  497 

[References  are  to  sections.] 

FORMALITIES: 

Of  tender,  waived,  47. 

Of  presentment  and  notice,  necessary,  72,  76. 

Waived  by  agreement  or  conduct,  72. 

Proof  of  waiver  is  equivalent  to,  73. 

Of  presentment,  etc.,  waived  orally  at  maturity,  79. 

by  conduct,  of  endorser,   110. 
Of  transfer  of  shares  in  corporation,  waived,  250,  252. 

FORMER  JEOPARDY: 

Constitutional  right,  389. 
Asserted  by  special  plea,  or  waived,  389. 
Not  a  defense  under  general  issue,  389. 
New  trial  is  waiver  of,  390. 
Moving  to  set  aside  verdict,  390. 
Fraud  in  first  trial,  392. 
waives  plea  of,  392. 

FRAUD: 

Contract  induced  by,  66. 

Knowledge  of,  essential  to  rescission,  66. 

Damages  may  be  had  for,  66. 

Waived,  by  action  to  enforce  contract,  67. 

by  recovering  judgment,  67. 

Continuing  under  contract  after  knowledge  of,  71. 
By  endorser  of  bill  or  note,  91. 
By  mortgagee,  as  waiver  of  lien  of  mortgage,  129. 

in  foreclosure  sale,  142. 
By  guest,  in  obtaining  possession  of  goods  from  inn-keeper, 

153. 

In  waiver  of  redemption,  206,  208. 
In  subscription  to  stock  of  corporation,  233,  et  seq. 

makes  voidable,  237. 

waived  by  acquiescence,  237. 

by  other  acts,  238. 
Of  insurer,  in  acting  contrary  to  charter,  275. 

in  delivering  policy  with  knowledge  of  its  invalidity,  277. 
Waivers  of,  not  favored,  345. 
Waiver  of,  by  retaining  property,  345. 
Action  for,  though  contract  performed,  347. 
In  criminal  prosecution,  392. 

waives  plea  of  former  jeopardy,  392. 

GARNISHEE: 

Defects  in  affidavit  waived  by,  385. 
by  appearance,  385. 
filing  answer,  385. 
contra,  385. 

GOODS: 

Payment  for,  not  demanded,  waived,  32. 

on  delivery,  not  waived  unless  so  intended,  33. 
Title  of,  not  to  pass  till  paid  for,  33. 
Right  to  re-take,  waived  by  giving  credit,  34. 

must  be  exercised  promptly,  34. 
Fraud  In  sale  of,  waived  by  judgment,  67. 

by  attachment,  68. 

B.  L.  W.— 32 


498  INDEX. 


[References  are  to  sections.] 

GUARDIAN;  GUARDIANS: 

Power  of,  to  waive  rights  of  infants,  8,  9. 
to  waive  statute  of  limitations,  9. 
jurisdictional  process,  10. 

HEAD  OF  FAMILY: 

Exemptions  to,  182,  183. 

Whether  may  waive  exemptions,  183,  184. 

Homestead  exemptions  of,  188. 

Failing  to  claim  exemptions,  wife  may,  188. 

HOLDER: 

Laches  of  in  regard  to  presentment  and  protest,  81,  83,  86, 

89,  94,  95. 

waived  by  part  payment,  95. 
May  show  that  endorser  knew  of  laches,  96. 

HOMESTEAD: 

Right  of,  to  be  asserted,  187,  189. 
is  a  personal  one,  187. 
to  head  of  family,  188. 
Wife   may   assert,    188. 
Not  divested  by  judgment,  189. 

HUSBAND  AND  WIFE: 

Privileged  communications  between,  198. 
statutory  provision   for,   198. 
waived  by  testifying,  198. 
by  failing  to  object,  198. 
by  other  acts,  198. 

IGNORANCE: 

Of  legal  effect  of  failure  of  presentment  and  protest,  94. 
Of  law,  73. 

IMPLIED  PROMISE: 

By  endorser  to  pay,  by  asking  more  time,  84. 

delay  of  suit,  84. 
As  waiver  of  statute  of  limitations,  220. 

from  acknowledgment  of  debt,  220. 

requisites   of,   220,   221. 

INCONSISTENT: 

Remedies,  election  of,  65,  68. 

conclusive,  68. 

Language  or  conduct,  a  waiver,  72. 

Attachment  is,  with  lien  of  chattel  mortgage,  112,  114. 
Personal  action  and  foreclosure,  not,  119. 
Conduct  by  mortgagee,  123,  127. 
Mortgage  is,  with  mechanic's  lien,  164. 
Collateral  security  not,  with  lien,  166. 
Conduct,  waiver  of  exemptions  by,  185. 

INDORSEMENT: 
Waiver  in,  75. 

In  contract  separate  from  instrument,  75. 
Each,  is  independent  of  others,  75. 
Waiver  subsequent  to,  78,  80. 


INDEX.  499 


[References  are  to  sections.] 

Of  waiver  on  insurance  policy,  317,  318. 
authority  of  agents  for,  317,  318. 
of  proofs  on  policy,  337,  338. 

INDORSEE: 

Bound  by  waiver  in  bill  or  note,  74. 

Adopts  terms  of  instrument,  74. 

Knowledge  implied  from  indorsement,  74. 

Oral  waiver  by,  75. 

Waives  presentment,  etc.  by  promise  to  pay,  76. 

Requesting  extension  of  time,  78,  84,  87. 

Rights   of   not   affected    by   agreements   between   holder    & 

maker,   78. 
Waiver  by,  of  demand,  etc.  at  maturity,  79. 

by  admitting  liability,  79,  80. 
Presumption  from  conduct  of,  81. 
Waiver  by,  must  be  with  knowledge,  81. 
Must  show  laches  of  holder,  81. 
New  promise  by,  after  release,  must  be  unconditional,  83. 

implied  from  asking  delay  of  suit,  84. 
Knowledge  of  facts  imputed  to,  88,  89. 
Part  payment  by,  no  waiver,  89. 
Knowledge  of  laches  of  holder  presumed,  90,  91. 
Payment  by,  waives  demand  and  protest,  95. 

paying   interest,   96. 

receiving  security,  97,  98,  99,  100. 

taking  assignment,  97,  98,  99. 

taking  confession  of  judgment,  97. 

if  security  is  sufficient,  99  to  102. 
Taking  security  at  time  of  indorsement,  101. 

between  indorsement  and  maturity,  101. 

after    maturity,    102. 
Waivers  by,  as  affected  by  statute  of  frauds,  109. 

INDICTMENT: 

Failing  to  state  offense,  388. 

cannot  be  waived  by  accused,  388. 

INCOMPETENCY: 

(See:    Witness;    Objections;    Evidence.) 

INFANTS: 

Power  of,  to  waive  rights,  7. 

May  disaffirm  contract,  8. 

Judgment  by  default  against,  8. 

Statute  of  limitations,  guardian  cannot  waive,  9. 

nor  jurisdictional  process,  10. 
Attorney  cannot  waive  process  for,  11. 

JNN-KEEPERS: 

Lien  of,  depends  on  possession,  153. 

waived  by  surrender  of  possession,  153. 
possession  of  goods  obtained  by  fraud  of  guest,  153. 
waived  by  taking  security  for  debt,  153. 
or  giving  credit,  153. 


500  INDEX. 

[References  are  to  sections.] 

INSURANCE: 

Non-payment  by  mortgagor,  135. 
Carried  on  by  corporations,  262. 
Companies  must  act  by  agents,  262. 
Limiting  power  of  agents,  262,  263. 
General  rules  of  agency  applicable  to,  263. 
Conditions  in  policies,  264. 

agents  may  waive,  265,  266. 

Knowledge  of  agent  is  knowledge  of  insurer,  266. 
Agent  as  representing  insured,  266,  267,  268. 
Insurer  questioning  acts  of  its  agents,  266. 
Agent  held  out  as  such  by  insurer,  267. 
Statements  in  applications  unknown  to  applicant,  267. 
Who  are  agents  of  insurer,  269. 
Restricting  authority  of  agents,  269,  270. 

insured  must  have  knowledge  of,  271. 
Whether  clerks  are  agents,  272,  273. 
Sub-agents,  272. 

Additional,  waiver  of  condition  against,  273. 
Acts  prohibited  by  charter,  274,  275. 
Insurer  acting  contrary  to  charter,  fraud,  275. 
Violating  by-law,  275,  276. 
Policy  not  void  for  violation  of  by-law,  276. 
Knowledge  of  all  facts  when  policy  issued,  277. 
Breach  of  conditions  before  delivery  of  policy,  277. 

delivering  policy  with  knowledge  of,  277. 

waived  by  silence  of  insurer,  278. 
Breach  of  condition  as  to  title,  waived,  279,  280. 

by  delivering  policy  with  knowledge,  279,  280,  28L 

by  other  conduct,  291,  292. 
Oral  application  without  disclosing  encumbrances,  282. 

waiver  by  insurer  failing  to  inquire,  282. 

by  agent  failing  to  mention,  282,  284. 

by  agent's  advising  not  to  mention,  282. 

by  delivering  policy,  282,  284. 

by  collecting  premiums,  282. 

knowledge  by  insured  of  false  answers,  282. 
Breach  of  condition  as  to  vacancy,  waived,  285. 
Use  of  premises,  breach  of  condition  as  to,  waived,  286. 

by  delivering  policy,  286. 
Breach  of  condition  as  to  prior  insurance,  287,  288. 

knowledge  of,  by  agent,  287,  288. 

waived  by  taking  premiums,  287,  288. 

by  issuing  policy,  287. 
"Iron-safe"  clause,  289. 

breach  of,  known  by  agent,  289. 
Endorsing  on  policy  consent  to  transfer  title,  291. 
Vacancy  of  premises  after  delivery  of  policy,  293. 

whether  agent  may  waive,  293. 

endorsing  consent  on  policy,  293,  294. 

not  waived  by  silence,  294. 
Encumbrances  after  delivery  of  policy,  295,  296. 

waived  by  assent  or  conduct,  295,  296. 


INDEX.  501 


[References  are  to  sections.] 

Mis-use  of  premises  after  delivery  of  policy,  297,  298. 
not  waived  by  silence  of  agent,  297,  298. 
nor  failure  to  cancel  policy,  297. 
by  consent  of  agent,  298. 
Additional  insurance,  299. 
waiver  by  insurer,  299. 
by  agent,  299,  301. 
consent  endorsed  on  policy,  300. 
failure  to  endorse,  301,  302,  303. 
silence  of  insurer,  301,  302. 
failure  to  cancel  policy,  303. 
collecting  premiums,  303. 
Premiums,  304,  et  seq. 

collected  by  agents,  304. 
pre-payment  of,  waived,  304. 

orally  or  in  writing,   304. 

by  delivering  policy  without  collecting,  305. 

by  giving  credit,  305,  306. 

by  custom,  306,  307. 
after  delivery  of  policy,  308. 

extension  of  time,  308. 

waived  by  conduct,  308. 

accepting  past-due  payment,  308,  309. 
authority  of  agents  to  waive  time  of  payment,  310,  311. 
acceptance  of  by  insurer,  311,  312. 
waiver  by  custom,  312,  313. 
cash  payment,  waiver  of,  313. 

by  accepting  note,  314. 

by  giving  credit,  314. 

agent  may  waive,  314. 
Waivers  in,  indorsement  of  on  policy,  317,  318. 

powers  of  agents  for,  317,  318. 
Loss,  notice  of,  319. 

not  waived  by  silence  of  insurer,  320. 
oral  notice  of,  320. 
conduct  waiving,  320,  322. 
to  agent,  not  to  insurer,  321. 

contra,  322. 
out  of  time,  323. 
defective  in  form,  323. 
Loss,  proof  of,  necessary  unless  waived,  324. 
waived  by  conduct,  324,  327,  328. 
by  denying  liability,  325. 
by  refusing  payment  on  other  grounds,  326. 
by  demanding  arbitration,  327. 
by  silence,  328,  331. 

defects  in,  waived  unless  objected  to,  329,  331. 
failure  to  return,  330. 

contra,  331. 

objection  on  other  grounds,  332. 
not  filed  in  time,  333,  334. 
waived  by  conduct,  333,  334. 
whether  agent  may  waive,  335,  336. 
whether  waiver  of  may  be  oral,  337,  338. 


502  INDEX. 


[References  are  to  sections.] 

Arbitration,  as  a  condition  precedent  to  recovery,  339. 

may  be  waived  by  conduct,  339. 
by  refusal  to  pay,  340. 
by  denial  of  liability,  340. 
Limitation  of  time  to  sue,  341,  et  seq. 

slight  evidence  sbows  waiver  of,  341. 

waived  by  conduct,  341. 

by  part  payment  of  loss,  341. 

by  promise  to  pay,  341. 

silence  not  a  waiver,  342. 

other  conduct  not  a  waiver,  342. 

INSTRUCTIONS: 

Given,  must  be  objected  to,  457. 
Errors  in  must  be  pointed  out,  457. 

in  substance,  457,  458. 

in  form,  458. 

waived  unless  objected  to,  458. 

time  for  objections  to,  458,  459. 
Written,  right  to,  459. 

waiver  of,  459. 

by  agreement,  459. 
Exception  to,  as  given,  460. 

form  of,  460. 

must  point  out  defects  in,  461. 

general  exception  not  sufficient,  462. 

what  waived,  462. 
Duty  to  request,  463. 
Omitted,  waiver  of,  463. 
Incomplete,  must  be  requested,  463. 
Insufficient,  must  be  requested,  464. 
Requests  for,  instances  where  necessary,  464. 
Refusal  of,  exception  to,  465. 

error  waived  without  exception,  465. 

error  must  be  pointed  out,  466. 

exception  on  one  ground  waives  others,  466. 
Time  for  exceptions  to,  467. 
Statutory  provisions  for  exceptions  to,  467. 
Exceptions  to,  after  verdict,  468. 

after  jury  retire,  468. 

on  motion  for  new  trial,  468. 

on  appeal,  468. 

INTEREST: 

Payment  of,  by  endorser  waives  presentment  and  protest,  96. 
Non-payment  of,  by  mortgagor,  132. 
Acceptance  by  mortgagee  of  part,  effect  of,  132,  134. 
Waiver  of  right  to  foreclose  for  non-payment  of,  134. 
Payment  of,  as  waiving  statute  of  limitations,  224. 

INTENTION: 

Necessary  ingredient  of  waiver,  14,  33. 
Makes  time  essence  of  contract,  36,  37,  40. 
To  waive  time,  need  not  be  express,  45. 
Tender,  apparently  waived  without,  46. 
Uncommunicated,  not  to  accept  tender,  51. 
To  abandon  contract,  in  rescission,  66. 


INDEX.  503 

[References  are  to  sections.] 

l"o  be  bound  by  contract,  waives  rescission,  71. 

To  forego  right,  waiver  is,  1. 

Need  not  be  express,  2. 

To  waive  presentment,  protest  and  notice,  78. 

Evidence  of,  to  pay  note,  waives  demand,  80. 

Of  mortgagee,  in  taking  other  security,  126. 

In  waiver  of  mechanic's  lien,  157. 

in  taking  mortgage,  164. 

in  taking  collateral  security,  166. 
In  waivers  of  the  statute  of  limitations,  216. 
In  waivers  of  irregularities  in  subscriptions  to  stock,  235,  238. 

"IRON-SAFE"  CLAUSE: 

Conditions  as  to,  in  insurance  policies,  289,  290. 

breach  of,  known  to  agent  of  insurer,  289,  290. 
waived  by  delivering  policy,  289. 
by  other  conduct,  289,  290. 
by  acquiescence,  290. 

JUDGE,  SPECIAL: 
Objections  to,  407. 

Must  be  special  authority  for  appointment  of,  407. 
Objections  to  competency  of,  waived  unless  asserted,  407. 

must  be  in  reasonable  time,  407. 

and  before  trial,  407. 

JUDGMENT: 

Recovering,  waives  fraud,  67. 
By  default,  against  infant,  8. 
Indorser  taking  confession  of  judgment  from  maker  of  note, 

97. 

Personal,  no  waiver  of  mortgage,  119,  127. 
At  law,  waives  entry  to  foreclose,  138. 
No  waiver  of  mechanic's  lien,  168. 
Waiver  of  vendor's  lien,  174. 
Does  not  divest  homestead  right,  189. 
Consent,  right  to  appeal  from,  476. 
Waiver  of  right  to  appeal  from,  476. 
By  stipulation,  right  to  appeal  from,  476. 
Payment  of,  appeal  after,  477. 
Compliance  with,  right  to  appeal  after,  478. 
Accepting  benefits  of,  right  to  appeal  after,  479,  480,  481. 

JURISDICTION: 

Over  defendant,  conferred  by  appearance,  352,  357,  to  366. 
Over  subject-matter,  367. 

cannot  be  waived,  367,  369. 

consent  will  not  confer,  367. 

appearance  will  not  confer,  367. 
Limited  by  statute  or  the  constitution,  368. 
Parties  cannot  divest  courts  of,  369. 

by  agreements  to  arbitrate,  369. 
Of  offenses,  386. 

Over  person  of  accused,  appearance  gives,  386. 
Waived  by  plea  of  accused,  386. 

by  waiving  extradition,  386. 


504  INDEX. 

[References  are  to  sections.] 

JURORS: 

Objections  to  panel,  408. 

failure  to  object,  408. 

objections  to,  waived  by  challenging  the  poll,  408. 
Objection  to  poll,  waived  by  accepting,  409. 

must  be  made  before  trial,  409. 
Disqualification  unknown  to  party,  410. 

not  a  waiver  of,  by  acceptance,  410. 

of  juror,  waived  by  peremptory  challenge,  411. 

waiver  by  accepting  jury  without  exhausting  peremptory 

challenges,  411. 
Number  of,  right  to  full,  414. 

at  common  law,  414. 

may  be  waived,  how,  414. 

acts  amounting  to  waiver,  415. 

JURY;   JURY  TRIAL: 

Waiver  of,  in  misdemeanors,  394. 

not  in  felonies,  394. 
Species  of  arbitration,  395. 

in  both  classes,  395. 
Number  of  jurors,  396,  et  seq. 

in  felonies,  397. 

cannot  be  waived,  397. 

nor  consented  to,  397. 

in  misdemeanors,  may  be  waived,  397. 

or  agreed  upon,  397. 
Acceptance  of,  waives  disqualification,  409,  410. 

other  acts  as  waiver,  411. 
Right  to,  guaranteed  by  constitution,  412. 

taken  away  only  by  consent,  412. 

may  be  waived,  412. 

whether  waiver  of  is  irrevocable,  412. 

submitting  to  reference,  as  waiver  of,  413. 

other  acts,  as  waiver  of,  413. 
Right  to  full  number  of  jurors,  414. 

at  common  law,  414. 

may  be  waived,  how,  414.  415. 
Taking  case  from,  447. 

KNOWLEDGE: 

Landlord  must  have,  of  subletting  to  waive  conditions,  64 

Of  fraud  inducing  contract,  66,  67. 

Of  facts  voiding  contract,  68. 

Attachment  after,  waives  fraud,  68. 

Necessary  for  rescission,  69. 

Of  fraud,  acting  under  contract  after,  71. 

Is  element  of  waiver,  2,  3. 

Where  imputed,  2. 

Of  facts  in  presentment  and  protest,  73,  93. 

Of  law,  in  presentment  and  protest,  73. 

Of  endorser,  that  maker  absconded,  78. 

Of  facts  releasing  endorser,  81,  88. 

No  waiver  by  endorser,  without,  facts,  88,  89. 

May  be  imputed  to  endorser  from  facts,  58. 

Part  payment  without,  no  waiver  by  endorser,  89. 


INDEX.  505 


[References  are  to  sections.] 

Of  endorser,  presumed,  90. 

Burden  of  showing  laches,  on  endorser,  92. 

contra,  90,  93. 

Of  legal  effect  of  holder's  default,  93. 
Of  endorser  at  time  of  part  payment,  95. 
By  mortgagee  attaching  property,  113,  114. 
Of  facts,  to  set  aside  foreclosure  sale,  144. 
Essential,  in  accepting  surplus  from  foreclosure,  146. 
Must  have,  to  waive  redemption,  214. 

By  subscriber  of  corporation,  in  waiving  condition  of  sub- 
scription, 228. 
Of  insurer's  agent,  is  of  insurer,  266,  316. 

knowledge  of  by  insured,  271. 

By  officers  and  agents  of  insurer,  of  provisions  of  charter,  274. 
Of  insurer,  of  terms  of  charter,  274. 

of  all  facts,  when  policy  issued,  277. 

as  to  title  of  property,  279. 

of  encumbrances,  by  insurer's  agent,  282. 
By  insured,  of  false  answer,  283. 
By  insurer,  of  additional  insurance,  301. 
By  insurer,  of  cause  of  forfeiture,  315. 

LACHES: 

Waives  breach  of  condition  subsequent,  59. 

Waives  right  to  rescind,  69,  71. 

Promise  to  pay  after,  of  holder  as  to  presentment,  etc.,  81,  85, 

89. 

Of  holder,  to  be  proved  by  endorser,  83. 
Not  waived  by  unaccepted  offer  of  endorser  to  pay,  86. 

nor  unless  endorser  has  knowledge  of,  88. 
Knowledge  of,  by  endorser  presumed,  90,  91. 
Burden  of  showing,  on  endorser,  92. 

contra,  93. 

Ignorance  of  endorser,  of  legal  effect  of,  94. 
In  enforcing  mortgage,  128. 
Of  mortgagee,  on  default  of  mortgagor,  135. 
Of  mortgagor,  in  setting  aside  mortgage  sale,  143. 
As  waiver  of  exemptions,  185. 
Waives  right  to  redeem,  210,  212. 

LANDLORD  AND  TENANT: 

Acceptance  of  rent  by  landlord,  waives  forfeiture,  53. 

Landlord  waives  forfeiture  by  silence,  54. 

Forfeiture  waived  by  landlord  by  recognizing  lease,  60. 

Landlord  must  act  promptly  to  enforce  forfeiture,  60,  61. 

No  waiver  from  permitting  tenant  to  hold  over,  60,  61. 

Landlord  must  claim  forfeiture,  61. 

Tenant  cannot  complain  of  own  default,  61. 

Acceptance  of  rent  waives  default  of  tenant,  62,  64. 

Acquiescence  in  delayed  payment  of  rent,  62,  63. 

Receiving  rent  from  assignee,  no  waiver  of  breach  of  condi- 
tion, 63. 

Forfeiture  not  waived  by  accepting  rent  after  notice  to  quit, 

63. 
nor  for  future  breaches,  63. 


506  INDEX. 


[References  are  to  sections.] 

Landlord  must  claim  forfeiture  during  term,  63. 
Forfeiture  declared  if  tenant  sub-lets,  64. 
Accept  of  rent  from  sub-lessee,  64. 

LAW: 

Knowledge  of,  in  presentment  and  protest,  73,  94. 

LEASES: 

Conditions  subsequent  in,  60. 

Leasing  premises  to  another,  no  waiver  of  breach  of  condi- 
tions, 61. 

Acceptance  of  rent  by  landlord,  waives  forfeiture,  62. 
Delay  in  paying  rent  acquiesced  in  by  landlord,  62. 
Landlord  must  claim  forfeiture  during  term,  63. 
Accepting  rent  from  sub-lessee,  64. 

Landlord  must  know  of  sub-letting,  64. 

LEVY: 

Of  attachment,  waives  right  to  rescind,  68. 

fraud  in  sale  of  goods,  68. 

affirms  contract,  68. 

waives  chattel  mortgage,  112. 

equity  of  redemption,  112. 

as  waiver  of  mortgage,   116. 

as  waiver  of  mechanic's  lien,  169. 

as  waiver  of  vendor's  lien,  174. 
Of  execution,  waives  chattel  mortgage,  116. 

not  if  on  exempt  property,  116. 

nor  where  execution  abandoned,  116*. 

nor  real  estate  mortgage,  119,  120. 

on  mortgaged  premises,  122,  123. 

on  equity  of  redemption,  121,  122. 

waives  carrier's  lien,  151. 
mechanic's  Hen,  169. 
vendor's  lien,  174. 

on  exempt  property,  185. 

directing  levy  on  exempt  property,  186. 

on  homestead,  187. 

LIEN;  LIENS: 

Of  chattel  mortgage,  waived  by  attachment,  112,  114. 

not  lost  by  attachment,  114. 

waived  by  execution,  116. 

not  where  execution  abandoned,   116. 

waived  by  attempted  sale,  117. 
Of  real  estate  mortgage,  not  changed  by,  118. 

change  in  form  of  debt,  118. 

not  waived  by  personal  judgment,  119,  127. 

nor  levy  of  execution,  119,  120,  123. 
contrary  view,  122. 

taking  other  security,  125. 

new  mortgage,  125. 

intention  of  mortgagee,  126. 

whether  waived  by  attachment,  127. 

lost  by  delay  in  enforcing,  128. 

second,  as  waiver  of  priority,  128. 


INDEX.  507 


[References  are  to  sections.] 

priority  of,  waived  by  fraud  or  misrepresentation,  129. 

by  extension  of  time,  130. 
Possessory,  waived  by  surrender,  148. 
Of  common  carrier,  149,  et  seq. 

waived  by  surrendering  possession,  150. 
must  be  voluntary,  150. 
by  conduct,  150. 

waived  by  attaching  goods,  151. 

by  levying  execution,  151. 

by  giving  credit,  152. 
Of  Inn-keepers,  based  on  possession,  153. 

lost  by  surrender  of  possession,  153. 
Of  liverymen  and  agisters,  154. 
Of  Attorney,  waived  by  taking  security,  155. 

not  by  delay  in  enforcing,  155. 

nor  by  taking  note,  155. 

conduct  waiving,  156. 
Mechanic's,  waived  by  conduct,  157  et  seq. 

whether  taking  note  waives,  158,  159. 

note  of  a  third  person,  160. 

negotiation  of  the  note,  161,  162. 

drawing  draft,  as  waiver  of,  163. 

waiver  by  taking  mortgage,  164,  165. 

collateral  security,  164,  166. 
not  inconsistent  with,  166. 
what  is  collateral  security,  167. 

not  waived  by  personal  judgment,  168. 

whether  waived  by  attachment,  169. 

by  execution,  169. 

agreements  waiving,  170. 

to  arbitrate,  170. 

extending  time  of  payment,  170. 

may  be  waived  by  agent,  171. 

waiver  by  sub-contractor,  171. 
Vendor's  lien,  waiver  of,  172,  et  seq. 

by  taking  vendee's  note,  172. 

collateral  security,  172. 

mortgage,  172,  173. 

note  of  a  third  person,  172. 

waiver  need  not  be  in  writing,  173. 

failing  to  enforce  in  reasonable  time,  173. 

securing  personal  judgment,  174. 

attachment,  174. 

execution,  174. 
On  corporate  shares,  253,  et  seq. 

created  by  custom,  253. 

is  waived  if  not  asserted,  254. 

purchaser  ignorant  of,  254. 

not  waived  by  taking  security,  254. 

certificate  reciting  fully  paid,  255. 

registration  waives  lien,  257. 

waived  by  giving  credit,  257. 
Of  attachment,  waiver  of,  384,  385. 


508  INDEX. 


[References  are  to  sections.] 

LIMITATION  OP  TIME  TO  SUE: 

In  insurance,  slight  evidence  to  show  waiver  of,  341. 
Waived  by  conduct,  341. 

by  part  payment  of  loss,  341. 

by  promise  to  pay,  341. 

silence  not  a  waiver,  342. 

other  conduct  not  a  waiver,  342. 

LIMITATION: 

(See:     Statute  of  Limitations.) 

LIQUOR: 

Condition  in  deed  not  to  sell,  on  premises,  59. 
sale  of  single  glass  no  breach,  59. 

LIVERYMEN  AND  AGISTERS: 

Lien  of  waived  by  surrender  of  possession,  154. 
surrender  must  be  intended  as  absolute,  154. 

LOSS: 

In  Insurance,  notice  of  required,  319. 
not  waived  by  silence  of  insurer,  320. 

oral  waiver,  320. 
conduct  waiving,  320,  322. 
to  agent,  not  notice  to  insurer,  321. 

contra,  322. 
out  of  time,  323. 
defective    in   form,    323. 
Proof  of,  necessary  unless  waived,  324. 
waived  by  conduct,  324,  327,  328. 
by  denying  liability,  325. 
by  refusing  payment  on  other  grounds,  326. 
by  demanding  arbitration,  327. 
by  silence,  328,  331. 

defective,  waived  unless  objected  to,  329,  331. 
failure  to  return,  330. 

contra,  331. 

objection  on  other  grounds,  332. 
not  filed  in  time,  333,  334. 

waived  by  conduct,  333,  334. 

illustrations  of,  334. 
\rhether  agent  may  waive,  335,  336. 
whether  may  be  oral,  337,  338. 

MECHANIC'S  LIENS: 

Waiver  of,  from  conduct,  157,  et  seq. 
Whether  taking  note  waives,  158,  159. 
Taking  note  of  third  person,  160. 

negotiation  of  the  note,  161,  162. 
Drawing  draft  as  waiver,  163. 
Waiver  of,  by  taking  mortgage,  164,  165,  167. 

collateral  security,  164,  166. 

not  inconsistent  with,  166. 

what  is  collateral  security,  167. 

not  waived  by  personal  judgment,  168. 
Whether  waived  by  attachment,  169. 
By  execution,  169. 


INDEX.  509 


[References  are  to  sections.] 

Agreements  waiving,  170. 

to  arbitrate,  170. 
Extending  time  of  payment,  170. 
May  be  waived  by  agent,  171. 
Waiver  binds  sub-contractor,  171. 

MISDEMEANORS: 

(See:     Crimes;   Criminal  Law.) 

MIS- JOINDER: 
Of  parties,  375. 

Cannot  be  objected  to  for  first  time  on  appeal,  375. 
Objection  not  waived  by  filing  answer,  375. 
Of  causes  of  action,  raised  by  demurrer,  376. 
objected  to  in  trial  court,  or  waived,  376. 
by  special  demurrer,  376. 
by  pleading  over,  376. 

MIS-NOMER: 

Waived  by  proceeding  to  trial  without  objection,  360. 

MISREPRESENTATION : 

By  mortgagee,  waives  priority,  129. 

By  mortgagee  under  absolute  deed,  202. 

In  subscriptions  to  stock,  233,  et  seq. 

makes  voidable,  237. 

waived  by  acquiescence,  237. 

by  other  acts,  238. 

MONEY: 

Necessary  to  produce,  in  tender,  47. 

production  of,  waived,  48. 

counting  of,  waived,  48,  50. 
Production  of  demanded,  no  waiver  of  tender,  51. 

MORTGAGES: 

Chattel,  waived  by  attachment,  112,  114. 
Inconsistent  with  attachment,  112. 
Legal  title  under,  112. 
Equity  of  redemption  in,  113. 
Attachment,  property  in  custody  of  few,  114. 
Lien,  held  not  waived  by  attachment,  115. 

waived  by  levying  execution,  116. 

not  where  execution  abandoned,  116. 
Attachment  of  proceeds  of  sale  under,  117. 
Real  estate,  secure  indebtedness,  118. 

not  changed  by  change  in  form  of  debt,  118. 

several  remedies  under,  119,  121. 

not  waived  by  personal  judgment,  119. 

nor  levy  of  execution,  120,  121,  122,  123. 

levy  of  execution  on  equity  of  redemption,  121,  124, 

taking  other  security,  125. 

accepting  new  mortgage,  125. 
intention  of  parties,  126. 

payment  of,  by  taking  new  mortgage,  126. 

by  renewal,  126. 


510  INDEX. 


[References  are  to  sections.] 

not  waived  by  suit  on  note,  127. 

nor  by  judgment,  127. 

whether  waived  by  attachment,  127. 

by  delay  in  enforcing,  128. 

second,  as  waiving  priority,  128. 

priority  of,  waived  by  misrepresentation,  129. 

release  of  mortgagor  from  personal  liability,  129. 

waiver  of  priority  by  extension  of  time,  130. 

breach  of  conditions  in,  131,  et  seq. 

payment  of  interest,  132. 
default  of  mortgagor  waived  by  conduct  of  mortgagee, 

132,  133,  134. 
default  in  paying  taxes  or  insurance,  133,  135. 

or  part  of  principal,  136. 
entry  to  foreclose,  waived  by  conduct,  137. 
possession  is  foreclosure  of,  138. 
entry  under,  waived  by  judgment,  138. 

by  other  conduct,  139. 
waiver  must  be  by  holder  of,  140. 
foreclosure  sale,  waiver  of,  141. 

by  extension  of  time,  141. 

payment  or  part  payment,  141. 

right  to  set  aside,  waiver  of,  143. 

irregularities  in,  waived  by  redemption,  145. 
by  accepting  surplus,  146. 
by  other  conduct,  146,  147. 
taking,  as  waiver  of  mechanic's  lien,  164,  165. 

of  vendor's  lien,  172. 

attorney  signing,  waives  privilege  of  client,  192. 
redemption  cannot  be  waived  in,  200,  204. 

in  deed  as  mortgage,  201,   204. 
once  a  mortgage,  always  a  mortgage,  202. 
redemption  from,  waived  by  subsequent  agreement,  208, 
205,  208,  209. 

must  be  voluntary,  206. 

by  conveyance  to  mortgagee,  207. 

by  parol  agreement,  209. 

statute  of  frauds  affecting,  209. 
Is  equitable  right,  210. 
redemption  must  be  in  reasonable  time,  210. 

time  for,  provided  by  statute,  211. 

lost  by  laches,  212. 

by  other  conduct,  213. 

must  be  consideration  for  waiver  of,  208,  213. 

with  full  knowledge,  214. 
taking,  no  waiver  of  lien  on  shares  in  corporation,  254. 

NEGLIGENCE: 

Waiver  inferred  from,  2. 

MEW  PROMISE: 

By  endorser,  to  pay,  81. 

Raises  presumption  of  demand,  81. 

Must  be  unconditional,  83. 

Need  not  be  express,  83. 

Implied,   84. 


INDEX.  511 


[References  are  to  sections.] 

On  condition,  must  be  accepted,  85,  86. 

By  endorser,  without  knowledge  of  facts  releasing  him,  88, 

89. 

presumes  knowledge,  90,  91. 
Part  payment  by  endorser  as,  95. 
Consideration  for,  104,  et  seq. 
As  affected  by  statute  of  frauds,  109. 
As  waiving  statute  of  limitations,  216,  219,  220,  222. 

NEW  TRIAL: 

Motion  for,  must  contain  what,  471. 
Errors  waived,  not  mentioned  in,  471. 
Denial  of,  failure  to  except  to  ruling,  272. 
Grounds,  not  specified  in,  waived,  272. 

NON-SUITS: 

What  is  a  non-suit,  447. 

Taking  case  from  jury,  447. 

On  motion  of  defendant,  447. 

Error  in  denying,  waived  by  Introducing  evidence,  448,  449. 

Waived  by  failure  to  renew  motion,  449. 

Moving  for,  on  one  ground,  waiver  of  others,  450. 

Ruling  on,  must  be  excepted  to,  or  error  waived,  451. 

NOT  GUILTY: 

Plea  of  statute  of  limitations  under,  226. 

NOTICE: 

Waiver  of  on  face  of  bill  or  note,  73. 

Oral  waiver  of,  75. 

Waived  by  promise  of  endorser  to  pay,  76,  81,  83,  89. 

Waiver  of,  after  endorsement,  78. 

by  extension  of  time,  78,  84,  87. 

at  maturity  of  paper,  orally,  79. 

by  admitting  liability,  79,  80. 
Presumed  from  conduct  of  endorser,  81. 
Waived  by  conduct,  81. 
Waiver  of,  after  maturity,  82. 
Knowledge  of  absence  of,  presumed,  90,  91. 
Proof  of,  waived,  91. 

burden  of  proof  as  to,  93. 
Paying  interest  as  waiver  of,  96. 
Receiving  security  as  waiver  of,  97  to  102. 

whether  security  taken  to  pay  note,  103. 
Consideration  for  waiver  of,  104,  et  seq. 
Of  loss,  under  insurance  policy,  319. 

not  waived  by  silence  of  insurer,  320. 

oral  waiver  of,  320. 

conduct  waiving,  320,  322. 

to  agent,  not  to  insurer,  321. 
contra,  322. 

out  of  time,  323. 

defective  in  form,  323. 
OATH: 

Necessary  to  administer,  to  witness,  416. 

Duty  of  party  calling  witness  to  have  oath  administered,  416. 

Failure  to  administer,  waived  unless  objected  to,  416. 


512  INDEX. 

[References  are  to  sections.] 

OBJECTIONS: 

To  special  judge,  407. 

waived  unless  asserted  promptly,  407. 
To  competency  of  witness,  419,  446. 

as  soon  as  incompetency  learned,  419. 

party  calling,  cannot  make,  419. 

not  waived  by  cross-examining,  419. 
Essential  for  appeal  of  any  matter,  426,  427. 
Must  be  made  in  trial  court,  427. 

when  evidence  is  offered,  428. 

when  too  late,  428. 
To  parol  evidence,  429,  430. 
To  secondary  evidence,  429. 
To  documentary  evidence,  429. 

To  variance  of  evidence  from  pleading,  429,  433,  440. 
Other  inadmissible  evidence,  429,  433. 
Incompetent  evidence,  430. 
First  made  on  appeal,  430. 
Specifying  grounds  of,  431,  442. 

and  evidence  objected  to,  431. 

General,  at  trial,  waives  special  on  appeal,  432,  436,  437. 
To  evidence  partly  admissible,  432. 
For  incompetency,  433. 

waives  other  grounds,  433. 
To  evidence  as  incompetent,  irrelevant  and  immaterial,  434. 

evidence  part  admissible,  435. 

if  admissible  for  any  purpose,  436. 

waives  competency  of  witness,  437. 

waives  other  objections,  437. 
Exceptions  to  foregoing  rules,  438. 
Questions  raised  on  appeal  without,  438. 
Waived,  if  abandoned,  439. 

illustrations  of,  439. 
For  variance  from  pleading,  440. 

excluded  on  motion,  440. 

must  be  raised  in  lower  court,  440. 

objection  to  evidence  on  other  grounds,  440. 

when  objection  to  be  made,  440. 

To  exclusion  of  evidence,  waived  unless  exception  taken,  443. 
To  admission  of  evidence,  waived  unless  exception  taken,  444, 

445. 

To  order  of  proof,  446. 
Instructions  given  or  refused  must  be  objected  to,  457. 

oral,  459. 

to  refusal  to  instruct,  463. 
To  verdict,  must  be  prompt,  469. 

to  defect  in  form  of,  469. 

must  be  specific,  469. 

OCCUPANCY: 

Of  building,  no  waiver  of  defects  in,  23. 

OFFICERS: 

Of  insurance  companies,  power  to  waive  provisions,  270. 

to  waive  acts  prohibited  by  charter,  274,  275. 
Notice  to,  is  notice  to  insurer,  276. 


INDEX.  513 

[References  are  to  sectiong.l 

ORAL: 

Waiver  of  presentment  and  protest,  73,  75. 
Waiver  at  time  of  endorsement,   76. 
Waiver  of  demand,  after  endorsement,  78. 

at  maturity,  79. 

Contract,  defense  against,  172,  179. 
Communication,  privileged,  193. 
Agreement  to  waive  redemption,  209. 
Waiver  of  additional  insurance,  301,  302. 

of  pre-payment  of  premiums,  304. 
Notice  of  loss  under  insurance  policy,  320. 
Waiver  of  proofs  of  loss,  337. 

contra,  338. 

PAROL: 

(See:     Oral;  Evidence) 

PARTIES: 

Mis-joinder  of,  375. 

appearing  on  face  of  complaint,  375. 

cannot  first  be  raised  on  appeal,  375. 

not  waived  by  filing  answer,  375. 
Plaintiff,  incapacity  of,  377. 

PARTNERS: 

Waiver  of  privileged  communications,  191. 

Not  waived  by  endorser,  of  presentment  and  protest,  89.    See, 

95. 

Of  Interest  by  mortgagor,  131,  132. 
Of  mortgage  debt  after  foreclosure,  waiver,  141. 
As  waiver  of  statute  of  limitations,  224. 

must  be  voluntary,  224. 

of  interest,  224. 
Of  subscriptions  to  corporation,  waives  conditions,  231. 

PAYMENT: 

In  arrears,  acceptance  of,  40,  41. 

Time  of,  waived,  46. 

Extending  time  of,  waives  forfeitures,  56. 

Of  purchase-price,  waiver  of  fraud,  67. 

Making,  waives  right  to  rescind,  71. 

Promise  of,  by  endorser,  waives  demand,  etc.,  76.  78,  79. 

New  promise  of,  by  endorser,  81. 

Offer  of,  unaccepted,  85. 

Promise  of  by  endorser,  must  be  with  knowledge,  88,  89. 

Presumes  knowledge,  90. 

As  waiver  by  endorser,  of  demand  and  notice,  95,  96. 

Of  mortgage,  by  taking  new  mortgage,  126. 

Delay  In,  presumes  payment  of  mortgage,  132. 

Of  taxes  or  insurance,  failure  In,  by  mortgagor,  135. 

Receipt  of,  waives  entry  to  foreclose,  137. 

Of  mortgage,  by  conveyance  to  mortgagee,  208. 

Implied  promise  of,  waiving  statute  of  limitations,  220. 

Promise  of,  as  waiving  statute  of  limitations,  222. 

Part  payment,  as  waiver  of  statute  of  limitations,  224. 

Of  interest.  224. 

B.  L.  W.— 33 


514  INDEX. 


[References  are  to  sections.] 

For  subscriptions,  as  waiver  of  conditions,  230,  231. 
For  insurance  premium,  waiver  of  pre-payment,  304,  et  Seq. 
Time  of  payment,  304,  314. 
Of  judgment,  waiver  of  right  to  appeal,  477. 
Accepting  payment  of  judgment,  waives  right  to  appeal,  479, 
480,  481. 

PHYSICIAN  AND  PATIENT: 

Privileged  communications  between,  196. 
waived  by  attorney,  196. 
by  assignee,  196. 
by  heir-at-law,  196. 
by  guardian,  196. 
waived  bv  implication,  197. 
calling  physician  as  witness,  197. 
failing  to  object,  197. 
patient  testifying,  197. 
by  other  acts,  197. 

PLACE: 

For  tender,  146. 

PLAINTIFF: 

Need  not  plead  that  contract  is  In  statute  of  frauds,  177. 
Must  bring  suit  in  court  having  jurisdiction  of  subject-matter, 

367. 

Cannot  consent  to  jurisdiction,  367. 
Incapacity  of,  ground  of  demurrer,  377. 
or  taken  by  answer,  377. 
waived  unless  objected  to  prior  to  trial,  377. 
taken  by  special  demurrer,  377. 

PLEADING;  PLEADINGS: 

Plaintiff  need  not  show  statute  of  frauds,  177. 
Defendant  must  plead  statute,  177,  181. 
Statute  of  frauds  under  general  issue,  179. 
Privileged  communication  waived  by,  194. 
Failure  to  plead  statute  of  limitations,  waiver,  225. 

not  in  criminal  cases,  226. 

Election  between  tort  and  contract  shown  only  by,  351. 
To  merits,  waives  defects  in  complaint,  371. 
Answering  after  overruling  of  demurrer,  373. 

held  waiver  of  defects  in  complaint,  373. 

contra,  374. 

Venue,  waiving  by  not  objecting  to,  372,  380. 
Former  jeopardy,  to  be  set  UD  by  special,  389. 
Variance  of  proof  from,  429,  433,  440. 

PLEDGE: 

As  waiver  of  exemptions,  185. 

POLICY;  POLICIES: 
Conditions  in,  264. 

waiver  of,  forbidden,  264. 

agents  may  waive,  265,  266. 
Provision  that  agent  shall  represent  insured,  266. 


INDEX.  515 


[References  are  to  sections.] 

Filling  in  and  delivering,  as  constituting  agency,  269. 
Restrictions  on  authority  of  agents,  269,  270. 

general  and  local,  270. 
Officers  waiving  provisions  in,  270. 
Countersigned  by  sub-agents,  272,  273. 

without  knowledge  of  insurer,  273. 
Not  void  for  violation  of  by-laws,  276. 
Breach  of  condition  before  delivery  of,  277. 
Delivery  of,  with  knowledge  of  invalidity,  277. 

waives  condition  as  to  title,  279,  280,  281,  291,  292. 
against  encumbrances,  282,  284. 
as  to  vacancy,  285. 
as  to  use  of  premises,  286. 
as  to  prior  insurance,  287. 
as  to  "iron-safe"  clause,  289,  290. 
Endorsing  on,  consent  to  transfer,  291. 
Vacancy  of  premises  after  delivery  of,  293. 
Endorsing  on,  consent  to  vacancy,  293,  294. 

not  waived  by  silence,  294. 
Mis-use  of  premises  not  waived  by  failure  to  cancel,  297,  298. 

by  consent  of  agent,  298. 
Additional  insurance,  consent  endorsed  on,  300. 

failure  to  endorse  on,  303. 

to  cancel,  303. 

Provide  for  payment  of  premium,   304. 
Delivery  of,  without  collecting,  for,  305,  306. 
Endorsement  of  waiver  on,  317. 
Loss  under,  notice  of,  319. 

not  waived  by  silence  of  insurer,  320. 

oral  notice  of,  320. 

to  agent,  not  to  insurer,  321. 
contra,  322. 

conduct  waiving,  320,  322. 

out  of  time,  323. 

defective  in  form,  323. 

endorsement  of  waiver  on,  337,  338. 
Arbitration  under,  339,  et  seq. 

POOR  AND  NEEDY: 

Exemptions  for  benefit  of,  184. 

POSSESSION: 

Taking,  not  a  waiver  of  damages,  15. 
Of  building,  not  waiver  of  defects,  15. 

if  defects  are  not  discoverable,  23. 
Remaining  in,  waives  right  to  rescind,  71. 
Is  foreclosure  of  mortgage,  138. 
Mortgagee  entering  into,  141. 
Waives  right  to  vacate  sale,  145. 
Common  law  lien  based  on,  148. 
Surrender  of,  by  carrier,  waives  lien,  150. 

by  inn-keeper,  153. 
by  liverymen,  154. 


516  INDEX. 


[References  are  to  sections.] 

POSSESSORY  LIENS: 

Common  law  liens  are,  148. 

Waived  by  surrender  of  possession,  150,  153. 

must  be  voluntary,  150. 

waived  by  conduct,  150. 

not  by  surrender  of  possession  if  conditional,  1BO. 

waived  by  attaching  goods,  151. 

by  levying  execution  on,  151. 

by  giving  credit  for  debt,  152. 

by  taking  security,  152. 

not  by  fraud,  153. 

PRACTICE: 

Criminal  procedure: 

Jury  waived  in  misdemeanors,  394. 

not  in  felonies,  394. 

is  species  of  arbitration,  395. 
Number  of  jurors,  396,  et  seq. 

in  felonies,  397. 

cannot  be  waived,  397. 

nor  consented  to,  397. 

in  misdemeanors,  398. 

full  number  may  be  waived,  398. 
or  agreed  upon,  398. 
Self-crimination,  399,  et  seq. 
Objections  to  special  judge,  waived,  407. 
Objections  to  jurors,  408. 

must  be  made  before  trial,  408. 

waived  by  accepting  jury,  409. 

disqualification  of  juror  unknown  to  party,  410. 
Right  to  jury  trial,  guaranteed,  412. 

taken  away  only  by  consent,  412. 

may  be  waived,  412. 

whether  waiver  of,  irrevocable,  412. 

acts  amounting  to  waiver  of,  413. 
Number  of  jurors,  right  to  full,  414. 

at  common  law,  414. 

may  be  waived,  how,  414. 

acts  amounting  to  waiver,  415. 
Incompetent  witness  must  be  objected  to,  419. 

as  soon  as  incompetency  learned,  419. 

party  calling  cannot  make,  419. 

not  waived  by  cross-examining,  419. 
Crimination  of  self,  420,  et  seq. 

privilege  waived  unless  claimed,  421,  423. 

when  to  be  claimed,  422. 

whether  attorney  may  claim  for,  423. 

extent  of  waiver,  424. 

testifying  before  grand  jury,  425. 

at  coroner's  inquest,  425. 
Objection  is  necessary  to  any  matter  for  appeal,  426,  427. 

must  be  made  in  trial  court,  427. 

to  evidence,  \vhen  offered,  428. 

when  too  late,  428. 

to  parol  evidence,  429,  433. 

to  incompetent  evidence,  430. 

other  Inadmissible  evidence,  429.  433. 


INDEX.  517 


[References  are  to  sections.] 

specifying  evidence  in,  431. 

general,  at  trial,  precludes  special,  on  appeal,  432,  436, 

437. 

evidence  admissible  in  part,  432. 
for  incompetency,  433. 

waives  other  grounds,  433. 
as  Incompetent,  irrelevant  and  immaterial,  43 i. 

evidence  admissible  in  part,  435. 

if  admissible  for  any  purpose,  436. 

waives  competency  of  witness,  437. 

and  other  objections,  437. 
Exceptions  to  foregoing  rules,  438. 
Objections  waived,  if  abandoned,  439. 

illustrations  of,  439. 

Variance  of  evidence  from  pleadings,  440. 
excluded  on  motion,  440. 
must  be  in  lower  court,  440. 
objection  on  other  grounds  as  waiver  of,  440. 
when  objection  to  be  made,  440. 
Exception  must  follow  objection,  441. 
must  specify  ruling,  441. 
to  each  ruling  as  made,  442,  443. 
to  exclusion  of  evidence,  443. 
when  taken,  443. 
must  be  specific,  443. 
to  admission  of  evidence,  444,  445. 

time  for  exception,  444,  445. 

must  specify  errors,  444,  445. 
Non-suit,  right  to,  447. 
on  motion,  447. 
error  in  denying,  waived  by  introducing  evidence, 

448,  449. 

failure  to  renew  motion,  449. 
moving  for  on  one  ground,  waives  others,  450. 
ruling  on,  must  be  excepted  to,  450. 
Demurrer  to  evidence,  452. 

waived  by  introducing  evidence,  453. 
when  taken,  453. 

must  be  exception  to  ruling  on,  454. 
Directing  verdict,  455. 

right  waived  by  introducing  evidence,  455. 
may  move  for,  second  time,  455. 
Instructions,  456,  et  seq. 

must  be  objected  to,  457. 

errors  in,  must  be  pointed  out,  457. 

waived  unless  objected  to,  458. 

written,  right  to,  459. 

waiver  of,  459. 

by  agreement,  459. 

exceptions  to  giving,  460. 

must  point  out  defects,  461. 

general  exception,  not  sufficient,  462. 

what  waives,  462. 
duty  to  request,  463. 
Omitted,  waiver  of,  463. 


518  INDEX. 


[References  are  to  sections.] 

incomplete,  must  be  requested,   463,  464. 

refusal  to  instruct,  exceptions  to,  465. 

error  waived  without,  465. 
Verdict,  objection  to  must  be  prompt,  469. 
Findings  of  fact,  defects  in,  470. 

exceptions  to,  470. 
New  trial,  motion  for,  471. 

denial  of,  waiver  of  errors  in,  472. 

PREMIUM: 

Insurer  receiving,  waives  breach  of  condition,  315. 

against  encumbrances,  282. 

prior  insurance,  287. 

change  of  title,  291,  292. 

additional  insurance,  303. 
Agents  collecting,  304. 
Payment  of,  waived,  304. 

orally  or  in  writing,  304. 

by  agent,  304. 

by  delivering  policy,  305,  306. 

by  giving  credit,  305,  306. 

by  custom,  306,  307. 
Payment  of,  after  delivery  of  policy,  308,  et  seQ. 

at  maturity,  waived,  308. 

extension  of  time  for,  308. 

waived   by    conduct,    308. 

accepting  past-due  payment,  308,  309. 

authority  of  agents  to  waive,  310. 

acceptance  by  insurer,  311,  312. 

waiver  of,  by  custom,  312,  313. 
Cash  payment,  waiver  of,  314. 

by  accepting  note,  314. 

by  giving  credit,  314. 

PRESUMPTION: 

From  conduct  of  endorser,  81,  93. 

Shifts  burden  of  proof,  81. 

Of  knowledge  of  laches,  from  promise  of  endorser  to  pay, 

90,  92. 

That  notice  was  given,  90,  91. 
Of  presentment  and  protest,  from  part  payment,  95. 

PREVENTION: 

Of  perfomance  of  contract,  a  waiver,  25. 

operates  as  discharge,  25. 

contractee  may  recover,  25. 
Making  performance  impossible,  same  as,  28. 
Innocent  party  may  recover  contract  price,  28. 
Demanding  illegal  performance,  the  same  as,  29. 

or  if  party  disable  himself  from  performing,  29. 
Refusing  to  treat  contract  as  subsisting,  30. 

refusal  must  be  unequivocal,  31. 

and  acted  on  by  other  party,  31. 

by  one  party,  excuses  other,  43. 
Of  tender,  50. 


INDEX.  519 

[References  are  to  sections.] 

PRESENTMENT: 

For  benefit  of  drawer  or  endorser,  72. 
May  be  waived  orally  or  in  writing,  73.  75. 

or  by  conduct,  73,  81. 
Statutory  provision  as  to,  73. 
Waiver  of,  on  face  of  instrument,  74. 

in  endorsement,  75. 

Waived  by  promise  to  pay,  76,  81,  83,  89. 
Waiver  of,  after  endorsement,  78. 

by  extension  of  time,  78,  84,  87. 

at  maturity  of  paper,  79. 

by  admitting  liability,  79,  80. 
Presumed,  from  conduct  of  endorser,  81. 
Waived  after  maturity,  82. 
Promise,  as  waiver  of,  must  be  unconditional,  83. 

by  asking  delay  of  suit,  84. 

not  by  asking  for  renewal,  89. 

nor  by  part  payment,  89. 
Knowledge  of  lack  of,  presumed,  90,  91. 
Proof  of,  waived,  91. 

Ignorance  of  legal  effect  of  failure  in,  94. 
Waived  by  payment  or  part  payment,  95. 
Payment,  prima  facie  evidence  of,  95. 
Paying  interest,  as  waiver  of,  96. 
Receiving  security  as  waiver  of,  97,  98,  99  to  102. 
Taking  assignment,  waives,  97,  98,  99  to  102. 

confession  of  judgment,  97  to  102. 

Whether  security  taken  is  ample  to  protect  endorser,  99,  100. 
Security  of  endorser  at  time  of  endorsement,  101. 

between  endorsement  and  maturity  of  paper,  101. 

after  maturity,   102. 

whether  security  taken  to  pay  note,  103. 
Consideration  for  waiver  of,  104,  et  seq. 
Waiver  of,  as  affected  by  statute  of  frauds,  109. 

PRIMA  FACIE: 

Promise  of  endorser  to  pay,  of  knowledge  of  laches,  90,  92. 
Payment,  evidence  of  demand  and  protest,  95. 

part  payment,  as,  96. 
Note,  evidence  of  payment,  159. 

PRIOR  INSURANCE: 

Condition  against,  waived  by  conduct,  287. 

Knowledge  of,  by  agent,  287,  288. 

Condition  against,  waived  by  taking  premiums,  287,  288. 

by  issuing  and  delivering  policy,  287,  288. 
Breach  of  condition  against,  renders  policy  voidable,  287. 

PRIORITY: 

Priority  of  mortgage,  accepting  second  as  waiver  of,  128. 
Waiver  of,  does  not  destroy  mortgage,  129. 
Misrepresentation  of  mortgagee  waives,  129. 
Release  of  mortgagor  from  personal  liability,  129. 
Waived  by  silence,  130. 

by  extension  of  time,  130. 


520  INDEX. 


[References  are  to  sections.] 

PRIVILEGED  COMMUNICATIONS: 
Giving  evidence  of,  190. 
Between  attorney  and  client,  191. 
Waiver  of,  by  administrator  of  client,  191. 

by  partner,  191. 

by  conduct,  191,  193. 

by  attorney's  signing  will,  192. 
mortgage,  192. 

waiver  may  be,  how,  154. 
May  be  oral,  193. 
Client  becoming  witness,  195. 
Between  physician  and  patient,  196. 

waived  by  attorney,  196. 

assignee,   196. 

heir-at-law,  196. 

guardian,  196. 

waived  by  implication,  197. 

calling  physician  as  witness,  197. 

failing  to  object,  197. 

patient  testifying,  197. 

waived  by  other  acts,  197. 
Between  husband  and  wife,  198. 

statutory  provisions  for,  198. 

waived  by  testifying,  198. 

by  failing  to  object,  198. 

by  other  acts,  198. 

PROCESS: 

Guardian  cannot  waive  for  infant,  10. 
Attorney  cannot  waive  for  infant,  11. 
Summons  not  essential,  352. 
Function  of,  352. 

Waived  by  general  appearance,  352. 
Defects  in,  waived  by  appearance,  353. 
Not  waived  by  special  appearance,  353. 
Waived  by  answering  to  merits,  353,  356. 
Defendant  ignorant  of  defects,  354. 
Service  of,  set  aside,  when,  355. 
Illustrations  of  waiver  of,  357,  359. 
Defects  in,  waived  by  proceeding  to  trial,  358. 

contra,  358. 

Exceptions  to,  must  be  properly  saved,  358. 
Waiver  of,  after  judgment,  359. 
In  wrong  name,  waiver,  360. 
Special  appearance,  not  waiver  of,  362,  363. 

what  is  special  appearance,  363,  364. 

appearance  under  protest,  364. 
Exemption  from  service  of,  366. 
Who  are  exempt  from,  366,  368. 

exemption  from,  must  be  claimed,  366,  368. 

waived  by  entering  appearance,  366. 

PROMISE: 

Of  marriage,  broken  by  marriage  to  another,  30. 
Executory,  mere  promise,  unless  on  consideration,  4. 
By  endorser  to  pay  note,  76,  78,  79. 
New,  by  endorser,  to  pay,  must  be  with  knowledge,  81. 


INDEX.  521 


[References  are  to  sections.] 

and  unconditional,  83. 
New,  implied  from  asking  time,  84. 
On  condition,  must  be  accepted,  85. 
By  endorser  ignorant  of  facts,  no  waiver  of  demand,  etc.,  88. 

presumes  knowledge,  90,  91. 
Burden  of  showing  knowledge  at  time  of,  92. 
Implied  from  acknowledgment  of  debt,  220. 

as  waiver  of  statute  of  limitations,  220. 
to  pay,  as  waiving  statute  of  limitations,  222. 

part  payment  as,  224. 

must  be  voluntary,  224. 

payment  of  interest  as,  224. 

PROOF;   PROOFS: 

Burden  of,  presumption  shifts,  81. 
Of  demand  and  protest,  waived,  91. 
Burden  on  endorser  to  show  laches  of  holder,  92. 

contra,  93. 

Of  loss  under  insurance  policy,  324. 
waived  by  conduct,  324,  327,  328. 
by  denying  liability,  325. 
by  refusing  payment  on  other  grounds,  326. 
by  demanding  arbitration,  327. 
by  silence,  328,  331. 

defects  in,  waived  unless  objected  to,  328,  329,  331. 
failure  to   return,   330. 

contra,  331. 

objection  on  other  grounds,   332. 
not  filed  in  time,  333,  334. 

waived  by  conduct,  333,  334. 
whether  agent  may  waive,  335,  336. 
whether  waiver  of  may  be  oral,  337. 
contra,  338. 

PROTEST: 

For  benefit  of  drawer  or  endorser,  72. 
Waived  orally  or  in  writing,  73,  75. 

or  by  conduct,  73,  81. 
Statutory  provisions  as  to,  73. 
Waiver  of,  on  face  of  instrument,  74. 

in  endorsement,  75. 

Waived  by  promise  to  pay,  76,  81,  83,  89. 
Waiver  of,  after  endorsement,  78. 

by  extension  of  time,  78,  84,  87. 

by  instructions  not  to  protest,  78. 
Waiver  at  maturity  of  paper,  79. 

by  admitting  liability,  79. 

Presumed  from  conduct  of  endorser,  81,  90,  91. 
Waiver  of,  after  maturity  of  paper,  82. 

by  asking  delay  of  suit,  84. 

not  by  asking  renewal,  89. 

nor  part  payment,  89. 
Proof  of,  waived,  91. 

Ignorance  of  legal  effect  of  failure  in,  94. 
Waived  by  payment,  95. 
Payment  prima  facie  evidence  of,  95. 


522  INDEX. 


[References  are  to  sections.] 

Paying  interest,  as  waiver  of,  96. 
Receiving  security,  as  waiver  of,  97,  98,  99. 
Taking  an  assignment,  as  waiver  of,  97,  98,  99. 
Taking  confession  of  judgment,  as  waiver  of,  97,  98,  99. 
Whether  security  ample  to  protect  endorser,  99  to  101. 
Security  taken  at  time  of  endorsement,  101. 

between  endorsement  and  maturity,  101. 

after  maturity,  102. 

when  taken  to  pay  note  with,  103. 
Consideration  of  waiver  of,  104,  et  seq. 
Waiver  of,  as  affected  by  statute  of  frauds,  109. 

PUBLIC  POLICY: 

Waiver  of  exemptions,  against,  183,  184. 
Against,  to  deny  jury  trial,  394. 

QUANTUM  MERUIT: 

No  recovery  on,  unless  contract  performed,  18. 

From  part  performance,  19. 

Contractor  may  recover  on  when  prevented  from  performance, 

26. 
Entitled  to  recover  on,  when  work  accepted,  42. 

REQUEST: 

(See:  Instructions;  Practice.) 

RATIFY;    RATIFICATION: 
Of  fraud,  66. 
Of  voidable  sale,  68. 
Election  of,  final,  69. 
Acts  of,  71. 

Infants  may,  contracts,  8. 
Of  foreclosure  sale,  by  redemption,  145. 
Of  fraudulent  subscriptions,  by  acquiescence,  237. 
Waives  irregularities  in  corporate  meetings,  242. 
Silence  is,  242. 

Of  irregular  assessments,  245. 

Of  acts  of  agents  in  waiving  payment  of  premiums,  311. 
Of  act  of  tort-feasor,  344. 
Of  fraud,  346. 

REAL  ESTATE  MORTGAGES: 
Secures  debt,  not  note,  118. 
Not  changed  by  change  in  form  of  debt,  118. 
Mortgagee  has  several  remedies,  119,  121. 
Not  waived  by  personal  judgment,  119. 

nor  levy  of  execution,  120,  121,  122,  123. 
Levy  on  equity  of  redemption,  121,  124. 
Waived  by  taking  other  security,  125. 

by  accepting  new  mortgage,  125. 

intention  of  parties,  126. 
Payment  of,  by  taking  new  mortgage,  126. 

by  renewal,  126. 

not  waived  by  suit  on  note,  127. 

nor  by  judgment,  127. 

whether  waived   by   attachment,   127. 

by  delay  in  enforcing,  128. 


INDEX.  523 


[References  are  to  sections.] 

Second,  as  waiving  priority,  128. 

Waiver  of  priority,  does  not  destroy  lien,  129. 

Priority  waived  by  misrepresentation,  129. 

Release  of  mortgagor  from  personal  liability,  129. 

Waiver  of  priority  by  extension  of  time,  130. 

Breach  of  conditions,  in,  131,  et  seq. 

Payment  of  interest,  132. 

Default  of  mortgagor  waived  by  conduct  of  mortgagee,  132. 

Foreclosure  of,  waived  by  extension  of  time,  132,  133,  134. 

Default  in  paying  taxes  or  insurance,  135. 

or  part  of  principal,  136. 
Entry  to  foreclose,  waived  by  conduct,  137. 
Possession  is  foreclosure  of,  138. 
Entry  under,  waived  by  judgment,  138. 

by  other  conduct,  139. 

waiver  must  be  by  holder  of,  140. 
Foreclosure  sale,  waiver  of  by  agreement,  141. 

by  extension  of  time,  141. 

payment  or  part  payment,  141. 
Foreclosure  sale,  right  to  set  aside,  waiver  of,  143. 
Redemption  waives  irregularities  in  sale,  145. 

waived  by  other  conduct,  146,  147. 

REASONABLE  TIME: 

Rescission  must  be  in,  70. 

What  is,  depends  on  facts,  70. 

Infant  must  disaffirm  in,  8. 

Mortgagor  has,  to  pay  after  default,  134. 

to  set  aside  sale,  143. 

Failure  to  endorse  vendor's  lien  within,  173. 
Exemptions  must  be  claimed  within,  184,  185. 
Redemption  must  be  in,  210. 
For  declaring  forfeiture  under  insurance  policy,  315. 

REASONABLE  VALUE: 

Compensation  for  partial  performance,  19. 

REDEMPTION: 

Equity  of,  not  attachable,  112. 

levy  of  execution,  121. 

sale  of,  121,  124. 

Foreclosure  sale  may  be  set  aside  within  time  for,  144. 
Waiver  of  right  to  vacate  sale  by,  145. 
In  mortgage,  cannot  waive,  199,  200,  201,  204. 

even  though  such  be  intention,  200. 

in  deed,  as  mortgage,  201. 

by  separate  instrument,  202. 

In  absolute  conveyance,  203. 
From  deed  of  trust,  204. 
Waived  by  agreement  after  mortgage,  205,  206,  207,  208. 

must  be  voluntary,  206. 

by  conveyance  to  mortgagee,  207. 

by  parol  agreement,  209. 
Statute  of  frauds  affecting,  209. 
Is  equitable  right,  210. 
Must  be  in  reasonable  time,  210,  212. 


524  INDEX. 


[References  are  to  sections.] 

Time  for,  provided  by  statute,  211. 

Lost  by  laches,  212. 

By  other  conduct,  213. 

Must  be  consideration  for  waiver  of,  208,  218. 

with  knowledge,  214. 
RELINQUISHMENT: 

Waiver  is,  of  right,  1. 

REMEDY;  REMEDIES: 

Election  of  one,  waiver  of  others,  65. 
Inconsistent,  choice  of,  68,  69. 
Under  mortgage,  119,  121,  127. 
Attachment  and  lien  cumulative,  169. 
In  tort,  or  on  implied  contract,  343. 
choice  of  one,  waives  other,  343. 

RENT: 

Acceptance  of,  by  landlord  waives  forfeiture,  53. 
Payment  of,  condition  subsequent,  60. 
Acceptance  of,  waives  default  of  tenant,  62. 
Payment  of,  acquiesced  in  by  landlord,  62,  63. 
Accepting,  not  a  waiver  of  future  defaults,  63. 
Acceptance  of,  from  sub-lessee,  64. 

landlord  must  have  knowledge  of  subletting,  64. 

RESCISSION: 

Waived  by  accepting  payment,  40. 

Of  contract  induced  by  fraud,  66. 

Receipts  under  contract  must  be  returned  on,  66. 

Waived  by  action  to  enforce  contract,  67. 

by  paying  purchase-price,  67. 

by  attaching  goods  sold  through  fraud,  68. 
Delay  in,  fatal,  70. 
Must  be  in  reasonable  time,  70. 
Making  payments  waives,  71. 
Asking  extension  of  time  as  waiver  of,  71. 
Remaining  in  possession  waives  right  of,  71. 
Of  contract  for  subscription  to  corporations,  237. 
Selling  property  waives,  345. 

RULING;  RULINGS  OF  COURT: 
Exceptions  to,  441,  et  seq. 

must  specify  grounds  and  ruling,  441,  442. 
Each  must  be  excepted  to,  443. 
Excluding  evidence,  443. 
Admitting  evidence,  444. 
On  non-suit,  must  be  excepted  to,  451. 
On  demurrer  to  evidence,  454. 
On  instructions  given,  exceptions  to,  460. 
Denying  motion  for  new  trial,  472. 


INDEX.  525 

[References  are  to  sections.] 

BALE: 

Waiver  of,  in  foreclosure,  141. 

by  agreement,  141. 

by  extension  of  time,  141. 

accepting  payment,  141. 

or  part  payment,   141. 
Right  to  set  aside  foreclosure,  waived,  143. 

by  laches  of  mortgagor,  143. 
Redemption  waives  irregularities  in,  145. 
Accepting  surplus,  waives  defects  in,  146. 
Irregularities  in,  waived,  147. 

SECURITY: 

Receiving  by  endorser,  as  waiver  of  demand  and  protest,  97. 

98,  99,  100,  101. 

Whether  taken  by  endorser,  ample,  99,  102. 
Taken  at  time  of  endorsement,  101. 
Between  endorsement  and  maturity  of  paper,  101. 

after  maturity,  102. 

Whether  taken  by  endorser  to  pay  note,  103. 
Taking  other,  as  waiver  of  mortgage  lien,  125. 

taking  new  mortgage  as,   125. 
Mortgagee  taking  after  entry,  waiver,  140. 
Taking,  waives  carrier's  lien,  152. 

statute  of  limitations,  223. 

SELF-CRIMINATION: 

(See:    Crimination  of  Self.) 

SERVICE: 

Of  process,  waived  by  appearance,  352,  353. 
Not  waived  by  special  appearance,  353. 
Set  aside,  when,  355. 
Illustrations  of  waiver  of,  357,  359. 
Waived  by  answering,  358. 

by  proceeding  to  trial,  358. 

answering  over,  held  no  waiver,  358. 
Objections  to  defects,  must  be  saved,  358. 
Waiver  of,  after  judgment,  359. 
In  wrong  name,  waiver,  360. 
Not  waived  by  special  appearance,  362,  363. 

what  is  special  appearance,  364. 

appearance  under  protest,  364. 
Exemption  from,  366. 

who  are  exempt,  366,  368. 

exemption  must  be  claimed,  366. 

waiver  by  permitting  default  judgment,  366. 

by  entering  appearance,  366. 
Of  garnishment  writ,  385. 

SHARES: 

On  subscription,  227. 

Conditions  in,  waived,   228. 

By  silence,  228. 

Conditions  in,  waived  by  conduct,  230. 

by  payment  on,  230,  232. 

by  part  payment  on,  231,  232. 


526  INDEX. 


[References  are  to  sections.] 

Fraud  or  misrepresentation  in  subscription,  233,  et  seq. 
Waiver  of  written  subscription,  235. 

of  defects  or  irregularities,  235,  236. 
Forfeiture  of,   for  non-payment,   246. 

enforcing,  waives  right  to  suit,  247. 

waived  by  delay  in  enforcing,  246. 
Transfer  of,  must  be  on  books,  249. 
Powers  of  assignor  and  assignee,  249. 
Irregularities  in,  waived  by  corporation,  250. 

by  recognizing  assignee,  250. 

defects  in  waived  by  assignee,  250. 
Where  legal  title  rests,  251. 
Consent  of  directors  to  transfer,  252. 

waiver  by  custom,  252. 
Lien  on,  how  created,  253. 

by  custom,  253. 

is  waived,  if  not  asserted,  254. 

purchaser  ignorant  of,  254. 

not  waived  by  taking  security,  254. 
Certificate  reciting  fully  paid,  255. 
Certificate  should  show  lien,  256. 
Defects  in  transfer  waived  by  registration,  257. 

by  giving  credit,  257. 

SILENCE: 

By  landlord,  waives  forfeiture,  54. 

Not  sufficient  as  a  waiver,  when,  2. 

As  waiver  of  priority  of  mortgage,  130. 

Waives  statute  of  frauds,  177. 

Conditions  in  subscriptions,  waived  by,  228. 

Is  ratification  of  irregular  acts  of  corporations,  242. 

Of  insurer,  waives  breach  of  condition,  278. 

Not  waiver  of  vacancy  of  premises,  294. 

Waiver  of  additional  insurance,  301. 

As  waiver  of  notice  of  loss,  320. 

defective  in  form,  323. 
As  waiver  of  proofs  of  loss,  328,  329,  331. 
Not  a  waiver  of  limitation  for  suit,  342. 

SINGLE  MAN: 

Waiver  of  exemptions  by,  184. 

SPECIAL  APPEARANCE: 
(See:     Appearance.) 

SPECIFIC  PERFORMANCE. 

No  tender  of  purchase-price  necessary  in,  49. 
Action  for,  waives  forfeiture,  56. 

STATUTE  OF  FRAUDS: 

Liable  on  part  performance  of  contract,  26. 

As  affecting  waiver  of  presentment  or  protest,  109. 

Waiver  of  vendor's  liens,  not  within,  173. 

Provisions  of,  175. 

Defense  of,  not  self-operative,  176. 

May  be  waived  by  conduct,  176. 

Plaintiff  need  not  plead  compliance  with,  177. 


INDEX.  527 


[References  are  to  sections.] 

Statute,  matter  of  proof,  177. 
Personal  right  of  defendant,  177. 
Defendant  waives,  by  silence,  177. 
Defendant  must  plead  and  prove,  177,  178. 
Under  the  general  issue,  178,  179. 
Cannot  be  first  raised  in  instructions,  179. 
Raised  by  objection  to  evidence,  179. 
Not  raised  by  admission  of  making  contract,  179. 
Waived  by  defending  solely  on  other  grounds,  180. 
.  Not  waived  by  administrator,  180. 
Waiver  of,  is  permanent,  181. 
As  defense  on  cross-bill,  181. 
Cannot  be  first  raised  on  appeal,  181. 

or  motion  for  new  trial,  181. 

nor  on  second  trial  unless  on  first,  181. 
In  waiver  of  equity  of  redemption,  209. 

STATUTE  OF  LIMITATIONS: 

Guardian  cannot  waive  for  infant,  9. 

Delay  for  period  for  enforcing  mortgage,  128. 

Belongs  solely  to  debtor,  215. 

Waived  by  agreement  or  conduct,  215,  216. 

Consideration  for  waiver  of,  217. 

Forbearance  to  sue,  as  waiver  of,  217. 

Waiver  of,  creates  new  period,  218. 

by  acknowledgment  of  debt,  219. 

by  statute,  219. 

Suit  barred  in  definite  time,  220. 
Acknowledgment  to  waive,  must  be  promise  to  pay,  220. 

implied  promise  to  pay,  220. 

requisites  of,  221. 
Promise  to  pay  as  waiver  of,  222. 
Waiver  by  letters,  223. 

by  giving  check,  223. 

by  giving  security,  223. 

part  payment  as,  224. 

must  be  voluntary,  224. 

by  payment  of  interest,  224. 

by  failing  to  plead,  225. 

not  in  criminal  cases,  226. 
Must  be  asserted  before  verdict,  226. 
Plea  of,  in  action  in  tort,  351. 

STATUTE;   STATUTES: 

Regulating  exemptions,  185. 

To  be  followed,  185. 

Homestead  exemptions,  187,  189. 

As  to  privileged  communications,  191. 

Provisions  by  as  to  communications  between  husband  and 

wife,  198. 

Provisions  for  redemption,  211. 
Provisions  of,  as  to  statute  of  limitations,  219. 
Jury  trial,  right  to  by,  394. 


528  INDEX. 

[References  are  to  sections.] 

STATE: 

Right  to  forfeit  charter  of  corporation,  258,  et  seq. 

waived  by  permitting  corporatfon  to  continue,  258. 
waiver,  question  of  intention,  258. 
Illustrations  of  waiver,  259,  260. 
cases  where  not  waived,  261. 

STOCK: 

(See:     Shares.) 

STOCKHOLDER'S  MEETINGS: 
Waiving  notice  of,  231. 
To  be  regularly  called,  241. 
Irregularity  in,  may  be  waived,  242. 

must  be  by  all  members,  242. 

waived  by  attendance,  242. 

by  subsequent  ratification,  242. 
Notice  of,  cannot  be  waived,  243. 

contra,  244. 

STOPPAGE  IN  TRANSITU: 

Right  to,  waived  when  right  to  rescind  waived,  71. 

SUBSCRIBER: 

Waiver  by,  of  condition  of  subscription,  227. 

must  know  of  rights,  228. 

may  be  by  silence,  228. 

by  conduct,  230. 

by  subscribing  prior  to  incorporation,  230. 

acting  as  director,  230. 

voting  at  meetings,  230. 
paying  calls,  230,  232. 

waiving  notice  of  meeting,  231,  243-4. 
Fraud  in  subscription  by,  233,  et  seq. 
Waiver  of  written  subscription  by,  235. 

of  irregularities  in  subscription,  236. 

SUBSCRIPTIONS: 
On  condition,  227. 
Waiver  of  condition,  227. 

must  be  with  knowledge,  228. 

may  be  by  silence,  228. 

by  conduct,  230, 

acting  as  director,  230. 

voting  at  meetings,  230. 

paying  calls,  232,  230. 
Waiving  notice  of  meeting,  231. 
Fraud  or  misrepresentation  in,  133,  et  Beq. 
Waiver  of  written  subscription,  235. 

of  defects  in,  235. 

of  irregularities  in,  235,  236. 
Fraud  makes  voidable,  237. 

waived  by  acquiescence,  237. 

acts  waiving,  238. 

SUBSTANTIAL  PERFORMANCE: 

Not  sufficient  for  recovery,  at  common  law,  16,  17. 


INDEX.  529 

[References  are  to  sections.] 

SUMMONS: 

(See:     Process.) 

SURRENDER: 

Waiver  is,  of  right,  1. 
Of  possession,  waives  lien,  148. 
of  common  carrier,  149,  150. 

must  be  voluntary,  150. 
of  inn-keeper,  153. 
Of  property,  as  waiver  of  exemptions,  185. 

TAXES: 

Non-payment  of,  by  mortgagor,  135,  144. 

TENDER: 

Law  of,  must  be  followed,  unless  waived,  46. 

To   whom   made,   46. 

Requisites  of,  46. 

Condition  may  be  coupled  with,  46. 

What  is  waiver  of,  47. 

Money,  necessary  to  produce  in,  47. 

Formalities  of  waiver,  47. 

Refusal  to  accept  on  one  ground,  waiver  of  others,  47. 

Medium  of,  47. 

Need  not  be  made  if  other  party  refuses  to  accept,  48. 

Failure  of,  waived  by  failure  to  object,  48. 

Waiver  may  be  before  or  after  tender,  49. 

Declaring  contract  ended,  waiver  of,  49. 

Prevented,  waiver  of,  50. 

Of  purchase-price  in  specific  performance,  not  necessary,  49. 

Waived  by  later  acceptance,  50. 

Not  waived  by  demand  for  larger  sum  than  offered,  61. 

nor  by  failure  to  object,  51. 

nor  by  uncommunicated  intention  not  to  accept,  61. 

TESTIMONY: 

Giving,  waives  privileged  communication,  194. 

Of  patient,  waives  privilege,  197. 

As  waiver  of  privilege  between  husband  and  wife,  198. 

Of  accused,  waives  privilege,  399. 

Of  incompetent  witness,  419. 

TIME: 

Whether  essence  of  contract,  36. 

not  in  equity,  36,  37. 
Is  of  essence  when  so  intended,  37. 
Reasonable,  where  not  provided  for,  37. 
If  of  essence,  default  discharges  contract,  381. 
If  not  of  essence,  reasonable  time  to  be  given,  38. 
Where  essence  of  contract,  may  be  waived,  39. 
Extending,  waiver  by,  42. 
Reasonable  time,  thirteen  years  not,  42. 
Waived,  if  party  hindered  in  performance  by  other,  45. 

where  change  is  directed,  44. 

depends  on  intention  of  parties,  45. 

not  waived  by  acceptance,  45. 
Of  tender,  waived,  47. 

B.  L.  W.— 34 


530  INDEX. 


[References  are  to  sections.] 

Of  waiver  of  tender,  49,  50. 

Waived  by  proceeding  under  contract,  56. 

House  to  be  built  in  certain  time,  forfeiture  enforced,  68. 

Rescission  must  be  in  reasonable,  70. 

Asking  extension  of,  waiver  of  right  to  rescind,  71. 

Infant,  must  avoid  contract  in  reasonable,  8. 

Request  for,  by  endorser,  waives  demand,  etc.,  78. 

Agreement  to  extend,  by  endorser,  87. 

Extension  of,  as  waiver  of  priority  of  mortgage,  130. 

Of  non-payment  of  interest,  132. 

Extension  of,  as  waiver  of  foreclosure  sale,  141. 

as  waiving  mechanic's  lien,  170. 
Reasonable,  allowed  for  redemption,  210,  211. 
Fixed  by  statute  for  redemption,  211. 
Suit  barred  in  certain  time,  220. 
To  pay  premiums,  waiver  of,  309,  310,  314. 
Notice  of  loss  under  policy  out  of,  323. 
Proofs  of  loss  not  filed  in,  333. 
Waiver  of,  by  conduct,  334. 
For  objections  (See:  Objections). 
For  exceptions  (See:     Exceptions;  Practice). 

TITLE: 

Breach  of  condition  as  to,  waived  by  insurer,  279,  et  seq. 

by  delivering  policy,  279,  280,  281. 
Change  in,  291,  et  seq. 

contrary  to  policy,  waiver  of,  291. 

by  accepting  premiums,  291. 

endorsing  on  policy  consent  to  change,  291. 

TORTS: 

Right  to  sue  in,  or  on  implied  contract,  343,  349. 

Choice  of  one,  waives  other,  343. 

only  where  property  converted  to  money,  343. 
May  disaffirm  act  of  tort-feasor,  344. 

may  affirm  act,  344. 
Fraud  in  contracts,  waiver  of,  345. 
Deceit,  not  waived  by  accepting  payment  on  note,  345. 

how  waived,  346. 
Right  of  rescission,  347. 
Conversion,  action  for,  348. 
May  waive,  and  sue  on  contract,  348. 
No  right  to  set-off,  349. 
What  recovered  in  action  in,  349. 

illustrations  of,  350. 
Election  between,  and  contract,  shown  only  by  pleading,  351. 

results  of,  351. 
Plea  of  infancy  in  suit  on,  351. 

of  statute  of  limitations,  351. 

of  exemptions,  351. 
Election  in,  irrevocable,  351. 

TRIAL: 

(See:     Practice.) 


INDEX.  531 

[References  are  to  sections.] 

USE: 

As  acceptance  of  performance  of  contract,  12. 
No  waiver  of  defects,  if  involuntary,  13,  14. 

USE  OF  PREMISES. 

Forbidden,  by  policy  of  insurance,  286. 
renders  policy  void,  286. 
knowledge  of  insurer  as  to,  286. 
waiver,  by  delivering  policy,  286. 
subsequent  to  delivery  of  policy,  297,  298. 
not  waived  by  silence  of  agent,  297,  298. 
nor  failure  to  cancel  policy,  297. 
by  consent  of  agent,  298. 

VACANCY: 

Of  premises,  knowledge  of  by  insurer,  285. 
Breach  of  condition  against,  in  policy,  285. 
waived  by  delivering  policy,  285. 
after  delivery  of  policy,  293. 

whether  waived  by  agent,  293. 
endorsing  consent  on  policy,  293,  294. 
not  waived  by  silence,  294. 

VARIANCE: 

By  parol,  of  written  instrument,  76. 
Between  pleading  and  proof,  429,  433,  440. 
advantage  of,  taken  on  motion,  440. 
must  be  in  lower  court,  440. 
objection  to  evidence  on  other  grounds,  440. 
when  objection  to  be  made,  440. 

VENDEE: 

Accepting  payment,  waives  forfeiture  by,  56. 
Fraud  of,  waived  by  judgment  against,  67. 
Note  of,  as  waiver  of  lien,  172. 

VERDICT: 

Directing,  455. 

Right  of  waived  by  introducing  evidence,  455. 

may  move  second  time  for,  455. 
Exceptions  to  instructions  after,  468. 
Objections  to,  must  be  made  promptly,  469. 

on  appeal,  469. 

must  be  specific,  469. 

no  exception  necessary,  469. 

VENDOR: 

Default  of  in  payment,  waived,  56. 
Accounting  with  vendee,  waives  forfeiture,  56. 
Lien  of,  waived  by  taking  note,  172. 

collateral   security,   172. 

mortgage,  172. 

notes  of  a  third  person,  172. 

waiver  need  not  be  in  writing,  173. 

failing  to  enforce  in  reasonable  time,  173. 

procuring  judgment,  174. 

attachment,  174. 

execution,  174. 

burden  of  proving  waiver,  on  vendee,  174. 


532  INDEX. 

[References  are  to  sections.] 

VENDOR'S  LIENS: 

Waiver  of,  172,  et  seq. 

by  taking  vendee's  note,  172. 

collateral  security,  172. 

mortgage,  172,  173. 

notes  of  a  third  person,  172. 

not  to  be  encouraged,  173. 

need  not  be  in  writing,  173. 
Procuring  judgment  as  waiver  of,  174. 

attachment,  174. 

execution,  174. 

burden  of  proving  waiver  on  vendee,  174. 
VENUE: 

Objection  to,  must  be  raised  before  trial,  379. 

waived  by  conduct,  379. 

by  not  objecting,  380. 

by  appearance,  380. 

by  stipulation  for  removal,  380. 

by  filing  answer,  380. 

by  moving  for  continuance,  381. 

WILL;   WILLS: 

Attorney  signing,  waives  privilege  of  client,  192. 
Revoking,  waives  privilege  of  patient,  196. 

WITNESS;   WITNESSES: 

Client  becoming,  as  waiver  of  privilege,  195. 
Accused,  becoming,  waives  privilege,  399. 

has  same  rights  as  others,  399. 
Failure  to  administer  oath  to,  416. 

waiver  of,  416. 
Depositions  of,  417. 

defective  notice,  waiver  of,  417. 

irregularities,  in,  waived,  417. 

objections  to,  to  be  made  at  time  of  taking,  418. 
Incompetency  of,  must  be  objected  to,  419. 

as  soon  as  learned,  419. 

party  calling,  cannot  make,  419. 

not  waived  by  cross-examining,  419. 
Crimination  of  self,  420,  et  seq. 

what  is  the  privilege,  420. 

tendency   to   criminate,   420. 

privilege  waived  unless  claimed,  421,  423. 

when  to  be  claimed,  422. 

whether  attorney  may  claim  for,  423. 

extent  of  waiver  of,  424. 

testifying  before  grand  jury,  425. 

at  coroner's  inquest,  425. 
Competency  of,  question  waived  by  general  objection,  437. 

by  failure  to  except,  446. 

WRITTEN  INSTRUMENT: 
Varying  terms  of,  76. 
Endorsement  of,  76. 
Waiver  of  redemption  to  be  by,  29. 

WAIVER: 

(SEE  THE  VARIOUS  TITLES  UNDER  THIS  INDEX,  FOR.) 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 
This  book  is  DUE  on  the  last  date  stamped  below. 


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OCT121978 


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UC  SOUTHERN  REGION 

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